United States District Court, D. Nebraska
MEMORANDUM AND ORDER
F. Bataillon Senior United States District Judge
matter is before the court on petitioner Edward Robinson,
Jr's, amended petition for a writ of habeas corpus under
28 U.S.C. § 2254, Filing No. 39. In his amended
petition, Robinson (hereinafter “petitioner” or
“defendant”) alleges he has been wrongfully
incarcerated for over a decade. He asserts violations of his
due process rights and ineffective assistance of counsel at
trial, on direct appeal, and during postconviction
alleges that the testimony of a witness that has now been
recanted is the only evidence that supports his conviction
for first-degree murder. He argues the allegedly false, and
now recanted, testimony, together with insufficient and
fabricated “eyewitness” testimony, prosecutorial
misconduct, and numerous trial errors, so infected his trial
and subsequent state court proceedings that he is entitled to
habeas corpus relief. Respondent (hereinafter, the
“State”) opposes the petition.
facts are set forth extensively in the Nebraska Supreme Court
opinions and this court's earlier opinions and need not
be repeated herein except as necessary to this opinion. See
State v. Robinson, 724 N.W.2d 35, 48-57 (Neb. 2006)
(“Robinson I”) abrogated in part, State v.
Thorpe, 783 N.W.2d 749 (Neb. 2010); State v.
Robinson, 827 N.W.2d 292, 297-99 (Neb. 2013)
Robinson was charged with first-degree murder and use of a
deadly weapon to commit a felony in connection with the
shooting death of Herbert Fant. In jury selection, the trial
judge overruled an objection under Batson v.
Kentucky, 476 U.S. 79 (1986), to the State's
exercise of a peremptory challenge to an African-American
evidence adduced at trial establishes that Fant's wife,
Parisee, and Robinson's wife, Tiffany Newte, are cousins.
The Fants had an argument on the night of the murder. Parisee
Fant had spoken to her cousin Tiffany Newte several times
that day concerning problems in the marriage. After the
argument, Tiffany Newte called Parisee Fant, angry and
screaming. Parisee called the victim, Herbert Fant, and spoke
to him about Tiffany Newte's call. Herbert Fant, the
victim, then had an argument with Newte, and, according to
the testimony of the victim's close friend, Michael
Whitlock, Robinson later said Fant allegedly
learning of the argument, Robinson went looking for Fant.
Whitlock testified that Robinson called him, asking where
Fant was. Several witnesses testified the two men were
fighting in the parking lot of a fast food restaurant at
about 10 p.m. that evening. Joe Lockett testified that he saw
Robinson shoot the victim, who then attempted to get into his
vehicle, but Robinson followed him and continued shooting.
Lockett was cross-examined extensively and inconsistencies in
his testimony were elicited and argued to the jury. The
testimony of other witnesses was largely inconsistent as to
the number of people present in the parking lot, the color
and make of the vehicles, and what happened after the
shooting. Cellular telephone records were offered and
admitted, over hearsay objections, to support the timeline
and locations of witnesses.
enforcement officers apprehended Robinson a few hours after
the shooting at an automobile body shop. Robinson's
nephew was also at the shop and was wearing a
synthetic-fur-lined black leather hooded coat similar to that
described by eyewitnesses as apparel worn by the individuals
present at the shooting.
jurors were dismissed during the trial-one because she knew
the victim's wife, and one because he had fallen asleep
at the trial. Both were replaced with alternates.
jury was instructed as follows on the varying levels of
homicide. Filing No. 12-1, State Court Record at 46-50.
Instruction No. 4 advised:
Under Count 1 of the Information, depending on evidence which
you may find the State has proved beyond a reasonable doubt,
you may find the Defendant Edward Robinson, Jr.:
1. Guilty of murder in the first degree; or
2. Guilty of murder in the second degree; or
3. Guilty of manslaughter; or
4. Not guilty.
material elements which the State must prove by evidence
beyond a reasonable doubt in order to convict the Defendant
Edward Robinson, Jr. of the crime of murder in the first
degree, as charged in Count 1 of the Information, are:
1. That the defendant, on or about February 24, 2003, did
kill Herbert Fant; and
2. That the Defendant did so in Douglas County, Nebraska; and
3. That the Defendant killed Herbert Fant purposely and with
deliberate and premeditated malice.
State has the burden of proving beyond a reasonable doubt
each and every one of the foregoing material elements of the
crime of murder in the first degree done on purpose and with
deliberate and premeditated malice.
To constitute murder in the first degree, there must have
been an unlawful killing done purposely and with deliberate
and premeditated malice. If a person has actually formed the
purpose maliciously to kill and has deliberated and
premeditated upon it before he performs the act and then
performs it, he is guilty of murder in the first degree,
however short the time may have been between the purpose and
its execution. It matters not how short the time, if a person
has turned it over in his mind and weighed and deliberated
If you find from the evidence beyond a reasonable doubt that
each of the foregoing material elements set out in this
Section 1 is true, it is your duty to find the Defendant
guilty of the crime of murder in the first degree done
purposely and with deliberate and premeditated malice, and
you shall so indicate by your verdict.
If, on the other hand, you find that the State has failed to
prove beyond a reasonable doubt any one or more of the
material elements in this Section 1, it is your duty to find
the Defendant not guilty of the crime of murder in the first
degree. You shall proceed to consider the lesser included
offense of murder in the second degree, set out in Section
Id. at 46. The following sections of the Instruction
set forth the elements of second-degree murder and
manslaughter under Nebraska law. Id. at 47-50.
closing argument, the State argued that the cell phone
records were unimpeachable third party independent evidence
that pinpointed an individual's exact location and time.
Defense counsel made several objections, but did not move for
deliberations, the bailiff was called to the jury room and
informed that the jury had found a marijuana cigarette in the
pocket of a coat that had been offered in evidence at the
trial. The coat matched witnesses' description of a coat
worn at the scene and was worn by the defendant's nephew
at the time of the arrest. The marijuana cigarette had not
been offered into evidence by either party and presumably
neither party knew it was there. Both parties' attorneys
were advised of this fact. The jury continued to deliberate
and shortly thereafter returned a verdict of guilty to the
charges of first-degree murder and use of a deadly weapon to
commit a felony.
was sentenced to life in prison on the first-degree murder
conviction and, was sentenced as a habitual criminal to ten
consecutive years for use of a deadly weapon to commit a
felony, to be served consecutively.
direct appeal to the Nebraska Supreme Court, Robinson raised
the following issues: (1) the trial court erred in allowing
the State to strike a juror only because of race; (2) the
trial court erred in overruling Robinson's motion in
limine regarding certain cell phone record evidence; (3) the
trial court erred in admitting such cell phone evidence; (4)
the trial court erred in ruling on Robinson's motion in
limine regarding Robinson's nephew's coat; (5) the
evidence adduced at trial was insufficient to convict
Robinson of the charges on which he was convicted; (6) the
trial court erred in overruling Robinson's motion to
dismiss; (7) the trial court erred in not granting
Robinson's motion for new trial; (8) the State committed
prosecutorial misconduct; (9) the trial court erred in
admitting evidence and finding Robinson of being a habitual
criminal; and (10) the trial court erred by not immediately
removing two jurors. See Robinson I, 724 N.W.2d at
56-57. Robinson was represented by the same counsel at trial
and on appeal.
Nebraska Supreme Court rejected Robinson's contentions of
trial error. It held that the cellular telephone records had
been properly admitted under the business records exception
to the hearsay rule and also found that Robinson had the
opportunity to cross examine all the telephone company
witnesses on the records.
further found no error in the admission of the fur-lined
leather coat, stating the evidence regarding the coat was
relevant and was not unfairly prejudicial because it matched
the descriptions given by witnesses and Robinson's nephew
was wearing it at the time of the arrests.
Nebraska Supreme Court addressed Robinson's
sufficiency-of-evidence challenge to his first-degree murder
conviction and concluded “there [was] sufficient
evidence to support the conclusions that the defendant killed
the victim and that he committed the killing with deliberate
and premeditated malice.” Robinson I, 724
N.W.2d at 74. The Court relied, in part, on the reported
statement by Robinson that he did not want to have to
“pop” the victim. Id. The Court reasoned
the “statement could easily be interpreted as a
reference to killing the victim and, while not conclusive,
[it] supports an inference that the defendant was
contemplating the possibility of killing the victim well
before their actual confrontation.” Id. The
Court relied on the testimony of Michael Whitlock at trial,
wherein he “indicate[d] that the defendant was angry
with the victim and had been searching for the victim,
suggesting both a motive and a deliberate intent to confront
the victim and perhaps to kill him.” Id.
the Nebraska Supreme Court reviewed the State's closing
argument and determined that the State did not misstate the
law, did not act improperly, and did not mislead the jury.
Id. at 75. As to the Batson challenge to the removal
of a juror, the Nebraska Supreme Court found the trial
court's conclusion that the State had a race-neutral
justification for striking the juror and the defendant had
not proved purposeful discrimination was not clearly
Postconviction Motion and Appeal
defendant filed an action for postconviction relief and the
District Court for Douglas County, Nebraska
(“Postconviction Court”) held an evidentiary
hearing on the motion. Filing No. 13-2, Bill of Exceptions,
Volume I, Hearing Transcript at 4-12, ECF pp. 864-72. In his
postconviction action, Robinson asserted ineffective
assistance of counsel in several particulars: (1) failing to
present the defense of an intervening cause of death for
Fant, i.e., a torn aorta caused by emergency medical staff in
attempting to treat the victim; (2) failing to move for a
mistrial after learning that the jury discovered extraneous
evidence in the form of a marijuana cigarette within a
separate piece of evidence; (3) failing to call Shamika Brown
and other witnesses to provide an alibi defense; (4) failing
to attack a witness' identification of the victim's
car as a Chevrolet Impala, rather than a Chevrolet Caprice;
(5) failing to investigate a “Crimestoppers”
phone call; (6) failing to challenge the cell phone evidence
admitted at trial as irrelevant and unduly prejudicial; (7)
failing to obtain an expert witness on unreliability of cell
phone evidence; (8) failing to object to the use of a large
chart listing all of the phone calls made by the defendant,
the victim and other witnesses on the day of the shooting;
(9) failing to obtain copies of vehicle registrations;
failing to move for a mistrial during the State's closing
argument; (10) failing to move for a mistrial because of the
behavior of two jurors; (11) failing to sit with him at
trial; and (12) failing to request a rehearing after the
defendant's direct appeal. Filing No. 12-5 at ECF pp.
720-25, State v. Robinson, No. 161-1412-5, Order on
Defendant's Second Amended Verified Motion for
Postconviction Relief (Part 1) (hereinafter
“Postconviction Order”); Filing No. 12-6 at ECF
pp. 726-31, Postconviction Order (Part 2).
court took judicial notice of the entire record in the case.
Filing No. 13-2, Hr'g Tr. (Pt. 1) at 5-6, ECF pp. 865-66.
Robinson also offered the deposition testimony of the trial
judge's bailiff, Robinson's trial counsel, a
physician, a police officer, and the defendant. Id.
at 6, ECF p. 866, Exs. 206-211.
Postconviction Court rejected the defendant's claims.
Filing No. 12-5, Postconviction Order (Pt. 1); Filing No.
12-6 Postconviction Order (Pt. 2). The court addressed the
claim of ineffective assistance in connection with the
marijuana cigarette that the jury discovered in the pocket of
the nephew's coat. Filing No. 12-5, Postconviction Order
at 4-6, ECF pp. 722-25. Apparently assuming deficient
performance, the Court assessed the prejudice component of
the ineffective assistance test. Id. It noted that
both the prosecution and defense had argued that the coat
belonged to Robinson's nephew. Id., Postconviction Order
(Pt. 1) at ECF p. 723. It found there was “no evidence
that the jury ...