United States District Court, D. Nebraska
DANNY R. ROBINSON, Petitioner,
DIANE SABTKA-RINE, Neb. Stat. Penitentiary, and SCOTT FRAKES, Respondents.
MEMORANDUM AND ORDER
F. Bataillon, Senior United States District Judge.
matter is before the court on Danny R. Robinson's
petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254. Filing No. 1 (Petition). A
jury found Robinson guilty of first degree murder, use of a
deadly weapon to commit a felony, and possession of a deadly
weapon by a felon in connection with the 2001 shooting death
of Daniel Lockett. Id. at 2; Filing No. 19-3 at
3 (Robinson III). The state district court initially
sentenced Robinson to life imprisonment without parole on the
first degree murder charge and to two consecutive sentences
of five to ten years' imprisonment on the use and
possession charges. Filing No. 19-1 at 7-8 (Robinson I).
After a direct appeal to the Nebraska Supreme Court, the
Court affirmed Robinson's convictions and sentences for
the use and possession charges but resentenced Robinson to
life in prison. Id. at 29. After an extended and
careful review of the record, the court finds no violation of
Robinson's constitutional rights and thus denies his
Petition for a Writ of Habeas Corpus.
Nebraska Supreme Court summarized the relevant facts as
On January 13, 2001, Dupree Reed and his brother Terez Reed
attended a party in Omaha, Nebraska. A confrontation occurred
between two street gangs, and shots were fired. Terez died as
a result. On the way to Terez' funeral on January 22,
Robinson told Courtney Nelson and James Edwards that he
thought Gary Lockett had murdered Terez.
After Terez Reed's funeral, friends and relatives
gathered at the home of his aunt. A few hours later, Dupree
Reed left the gathering and got into a green Chevrolet Tahoe
driven by Robinson. At trial, Dupree described three other
people who were in the Tahoe by their gang names: Killer C
(Nelson), Boomerang (Edwards), and B Dub (Antonio
Witherspoon). Dupree stated that while he was riding in the
Tahoe, Robinson said he knew who killed Terez. Robinson was
referring to Gary Lockett, whose gang name was
"Pipe." As the Tahoe passed a house located in
North Omaha, Robinson said, "That's the house that
they be at."
Robinson parked the Tahoe, and he and Dupree Reed got out.
They approached the above-mentioned house by crossing various
yards. According to Dupree, he stayed back by the alley while
Robinson jumped a fence and "went on the side [of the
house] by the window." Robinson was standing on
something, but Dupree could not see what it was. Dupree
testified that Robinson was "[r]ight up close" to
the house and was looking in the window.
Dupree testified that as he and Robinson walked toward the
house, he knew they were going to "shoot it up"
because that is what they had said in the Tahoe earlier when
they drove past the house. Dupree said that Robinson shot
first and that he then started firing. Dupree had a .22-
caliber handgun, and he fired six or seven shots at the
house. He quit firing because his gun jammed, but Robinson
was still shooting. According to Dupree, when they returned
to the Tahoe, "[Robinson] said, he'd kill us if we
say anything." Edwards testified that while he waited in
the Tahoe, he heard numerous shots fired. He heard different
noises that did not sound like they all came from one gun.
Edwards said that after he heard the gunfire and saw flashes
from the guns, Dupree Reed and Robinson came running back to
the Tahoe. When Robinson got into the Tahoe, Edwards saw a
9mm Beretta gun in Robinson's hands.
Edwards noticed that Robinson's weapon had fired all its
rounds because it was "cocked all the way back." He
said Reed had a .22-caliber "German-style looking
gun." Edwards claimed to be familiar with guns and to
have fired them before. Edwards told Robinson that he was not
happy with Robinson, and Robinson said, "Don't tell
nobody." Edwards testified: "He, like, threatened
to kill people or whatever."
Nelson testified that he met Robinson in 1993 and that at
that time, Robinson claimed to be affiliated with the
"Hilltop Crips" gang. Nelson said he left the
funeral reception for Terez Reed in the green Tahoe driven by
Robinson. He saw Robinson with a 9-mm handgun, and he saw
Dupree Reed with a .22-caliber automatic handgun.
Daniel Lockett was the victim of the above-described
shooting. As he was bending down to put on his shoes in the
living room of his mother's house in North Omaha, he was
shot. Lockett's sister, Teresa Mountain, who was also in
the living room, heard at least 15 or 20 shots fired. The
gunfire which came through the side window in the front of
the house sounded different than the shots she heard in the
back. She heard the shots in the front before she heard shots
from the back. After the shooting, Mountain shook Daniel, but
he did not respond. According to Mountain, Gary Lockett was
not in the house at the time of the shooting.
Daniel Lockett died as a result of the incident described
above. He sustained four gunshot wounds: one to the right
shoulder, two to the right side of his chest, and one to the
right forearm. One of the bullets passed through the upper
lobe of Lockett's right lung and then through his heart.
Omaha police observed nine bullet holes in the window in the
front of the house where the Lockett shooting occurred. Shell
casings from a 9mm handgun and bullet fragments found at the
scene were determined to have been fired by the same 9-mm
weapon. The bullets retrieved from Lockett's body were
most consistent with having been fired from a 9-mm handgun.
The police suspected that Daniel Lockett's murder could
have been in retaliation for the murder of Terez Reed.
Robinson was subsequently charged with first degree murder in
the death of Daniel Lockett, use of a deadly weapon to commit
a felony, and possession of a deadly weapon by a felon.
Following a jury trial, Robinson was convicted and sentenced
to life imprisonment without parole on the murder charge and
two consecutive sentences of 5 to 10 years' imprisonment
on the use and possession charges.
Filing No. 19-1 at 6-8 (Robinson I).
2006, on direct appeal, the Nebraska Supreme Court affirmed
Robinson's convictions on all three counts and the
sentences for the use and possession convictions, but vacated
the sentence of life imprisonment “without
parole.” Filing No. 19-1 at 29 (Robinson
I). The Court found that the “without parole”
feature of the murder sentence was not authorized by statute
and remanded the case with directions to the trial court to
resentence Robinson to life imprisonment. Id. at
28-29. In March 2008, Robinson filed a motion for
postconviction relief in which he made numerous claims of
ineffective assistance of trial counsel. Filing No. 19-3
at 3 (Robinson III). In March 2009, the district court
granted an evidentiary hearing limited to certain issues.
Id. In February 2010, the district court concluded
that Robinson failed to show that his counsel's
performance was deficient. Id. at 4. The district
court further noted that even if Robinson could show
deficient performance by his counsel, he could not show any
prejudice resulting from counsel's alleged deficient
2011, Robinson filed a pro se motion he titled as a second
motion for postconviction relief. Id. In effect,
Robinson sought reinstatement of his appeal by this motion.
Id. Accordingly, the district court denied the
motion, reasoning that a postconviction action was not the
appropriate vehicle to request a reinstatement of the appeal
from the denial of an earlier postconviction motion.
Id. at 4-5. Robinson appealed this denial to the
Nebraska Supreme Court. Id. at 5. The Court
determined that although Robinson's motion was titled as
a postconviction action, it included a request for
reinstatement of his appeal due to official negligence, which
is a claim cognizable under Nebraska law. Id. The
Court reversed the denial of the motion and remanded the case
to the district court to consider the motion. Id.
Under its nunc pro tunc power, the district court reinstated
Robinson's appeal from the February 2010 order in April
2013. Id. The district court denied this motion
after an evidentiary hearing. Id. Robinson then
appealed the state district court's decision to the
Nebraska Supreme Court, who denied it in March
March 19, 2014, Robinson filed a motion for rehearing with
the Nebraska Supreme Court. Filing No. 19-19 (Motion
Rehearing Brief Robinson III). The Court denied this motion
as it was untimely filed. Filing No. 29 at 11 (Brief
of Respondents). Robinson then submitted a petition for a
writ of habeas corpus on March 21, 2014. Filing No. 1 at 174