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Robinson v. Sabatka-Rine

United States District Court, D. Nebraska

September 22, 2016



          Joseph F. Bataillon Senior United States District Judge

         This 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 proceedings.

         He 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.

         I. BACKGROUND

         A. Conviction

         The 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);[1] State v. Robinson, 827 N.W.2d 292, 297-99 (Neb. 2013) (“Robinson II”).

         Briefly, 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 juror.

         The 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 “disrespected” Newte.

         On 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.

         Law 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.

         Two 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.

         The 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.

         SECTION 1

         The 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.

         The 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 upon it.
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 II.

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.

         In 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 a mistrial.

         During 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.

         Robinson 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.

         B. Direct Appeal

         In his 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.

         The 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.

         It 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.

         The 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.

         Further, 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 erroneous.[2]

         C. Postconviction Motion and Appeal

         The 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).

         The 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.

         The 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 ...

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