United States District Court, D. Nebraska
KEENON A. ROBERTSON, Petitioner,
SCOTT FRAKES, Director of Nebraska Department of Correctional Services; Respondent.
MEMORANDUM AND ORDER
Richard G. Kopf, Senior United States District Judge
matter is before the court on Petitioner Keenon A.
Robertson's (“Petitioner” or
“Robertson”) Petition for Writ of Habeas Corpus.
(Filing No. 1.) For the reasons that follow,
Petitioner's habeas petition is dismissed with prejudice.
and condensed, and as set forth in my previous progression
order (filing no. 7), Petitioner asserted the
following claims that were potentially cognizable in this
Claim One: Petitioner was denied his rights to present a
complete defense, to a fair trial, to due process, to equal
protection, and to effective assistance of counsel under the
Fifth, Sixth, and Fourteenth Amendments of the U.S.
Constitution because (1) trial counsel failed to
object and argue that the trial court violated
Petitioner's “U.S. Constitution and federal law
rights” when it failed to give a “defense of
others” jury instruction; (2) appellate counsel failed
to argue on direct appeal that Petitioner was prejudiced
“under the U.S. Constitution and federal law”
when the trial court failed to give the “defense of
others” jury instruction; and (3) appellate counsel
failed to argue on direct appeal subpart (1).
Claim Two: Petitioner was denied his rights to a fair trial,
a complete defense, due process, and effective assistance of
counsel under the Fifth, Sixth, and Fourteenth Amendments of
the U.S. Constitution because trial counsel failed
to move for a mistrial after discovering juror misconduct.
Claim Three: Petitioner was denied his right to effective
assistance of counsel under the Sixth and Fourteenth
Amendments of the U.S. Constitution because (1)
trial counsel failed to raise that Petitioner's
constitutional right to speedy trial was violated; (2)
appellate counsel failed to argue on direct appeal subpart
(1); and (3) appellate counsel failed to argue on direct
appeal that Petitioner's constitutional right to speedy
trial was violated.
Conviction and Sentence
court states the facts as they were recited by the Nebraska
Court of Appeals in State v. Robertson, No.
A-12-204, 2013 WL 599895 (Neb.App. Feb. 19, 2013) (Memorandum
Opinion) (affirming Robertson's convictions and sentences
on direct appeal). (Filing No. 11-5.) See
Bucklew v. Luebbers, 436 F.3d 1010, 1013 (8th Cir.
2006) (utilizing state court's recitation of facts on
review of federal habeas petition).
April 2, 2010, Robertson was sitting in his car talking with
his neighbor in her driveway when shots were fired into the
back of his car. The bullets shattered the back window, and a
bullet lodged into the tire of the car.
Easter Sunday, April 4, 2010, Buomkuoth Tang was driving a
white Mazda in Omaha, Nebraska, on Ida Street, headed toward
37th Street. Larry Brye, Terrance Pinneke, and Dontevous Loyd
were passengers in the vehicle. Tang could not turn onto 37th
Street because another car blocked the intersection. A man in
a red shirt opened fire on Tang, Brye, Pinneke, and Loyd.
Tang attempted to reverse the Mazda down the street, but
crashed into a tree. All four men sustained various injuries.
Tang was hospitalized for 40 days. Eyewitnesses to the
shooting identified Robertson as a suspect.
19, 2010, the State charged Robertson with four counts of
attempted second degree murder and four counts of use of a
deadly weapon to commit a felony.
State's Motion to Continue Trial
pretrial conference in December 2010, the court noted
concerns about the age of the case under Nebraska's
speedy trial statutes and scheduled a trial date 11 days
later. At a hearing on the State's motion to continue,
the State argued that it had good cause for a continuance
under Neb. Rev. Stat. § 29-1207(4)(f)
(Cum.Supp.2012), because of the exceptional nature of the
case and the fact that the assigned prosecutor had been on
maternity leave since late October.
objected to the continuance, arguing that delaying trial
violated his right to a speedy trial. The trial court found
good cause and exceptional circumstances to continue the
trial because of the seriousness of the charges and the
prosecutor's situation. The trial court set the trial
date for April 2011.
April 6, 2011, the State filed a final amended information
charging Robertson with one count of discharging a firearm at
an occupied house, occupied building, or occupied motor
vehicle and one count of use of a deadly weapon to commit a
felony. Robertson filed a motion to discharge the matter
because it violated his right to a speedy trial. The trial
court overruled the motion, and the trial proceeded.
Robertson did not appeal the trial court's ruling on the
motion to discharge.
trial, the State presented testimony from a number of police
officers. According to this testimony, police officers
responded to two separate, but geographically close, crime
locations. The initial call was for shots fired in the area
of 36th and Ida Streets; the second call was for a shooting
victim in the area of 6900 North Ridge Drive.
to the testimony, in the area of 6900 North Ridge Drive, an
officer observed several people standing in the front yard
attending to a shooting victim who had a gaping wound in his
right stomach area. Pinneke was aiding Tang, the victim. The
west side of North Ridge Drive was searched, but no firearms
or shell casings were located in that area.
officer observed a white Mazda that was “impaled into a
tree.” The Mazda was mostly damaged in the rear, as if
it had run into the tree backward. The vehicle had about
seven bullet holes in it, and the windshield was smashed.
West of the Mazda, another officer encountered another
shooting victim, Loyd, who was being tended to by Brye. Loyd
described what had happened and stated that he could identify
lead crime scene investigator testified that 19 shell casings
were found along both 37th and Ida Streets. He also testified
that the way the glass was broken on the Mazda's
windshield was consistent with someone firing a shot at the
windshield, rather than someone firing a shot from inside the
reported that the shooting suspect had been wearing a red
shirt and was last seen heading toward the area of a middle
school. An officer located a red shirt directly north of the
school. Another officer located a firearm just south of 37th
and Ida Streets.
detective received a report from a witness that someone in
the Mazda had also opened fire. He testified that the police
department searched for a second weapon, but was unable to
technicians testified that only one weapon was located, a
Chinese-manufactured SKS 7.62-mm x 39-caliber semiautomatic
rifle that holds 30 rounds of ammunition and requires the
shooter to pull the trigger between each shot. Eight bullet
holes were identified in the Mazda, which holes indicated
that the bullets were fired into the Mazda from the outside.
residents of the neighborhood testified; one specifically
identified Robertson as the assailant and further testified
that he saw Robertson shooting a weapon and running toward
the Mazda. Other witnesses testified that a man in a red
shirt was shooting at the Mazda. The testimony was
conflicting as to whether anyone from the Mazda fired back.
There was also conflicting evidence whether shots from more
than one firearm could be heard.
next-door neighbor, Latia Blair, testified that on April 4,
2010, everyone was outside having cookouts for Easter,
including children and grandparents. According to Blair,
“At least [Robertson's] mom, everybody that lived
there. Friends, family. So about 10, 15 people [were at
Robertson's house].” The occupants of the Mazda
testified generally that they had been “hanging
out” together on April 4 at Loyd's house around
Redman Street. They then went to a fast-food restaurant.
While heading back to Loyd's house, they ended up on Ida
Street. Loyd testified that Tang liked to “mess with
people” in that area. Loyd further testified that he
told Tang not to turn onto that street, but Tang did anyway.
Loyd denied there were any weapons in the Mazda. At the
intersection of 37th and Ida Streets, a car blocked their
path and then they heard gunshots. Tang put the Mazda in
reverse and began driving down the street until he ran into a
tree. Pinneke was struck by a bullet in the hip, and Tang was
struck in the abdomen. Tang was hospitalized for 40 days.
testimony was consistent with the above except he claimed
that they were on their way to play basketball and that is
why they ended up on 37th and Ida Streets.
along with several other neighbors, also corroborated an
earlier driveby shooting that occurred on April 2, 2010.
Blair testified that she was parked in front of her house
talking to Robertson, who was sitting in his car in her
driveway, when shots were fired toward his car. She said the
shots hit the rear of Robertson's car. She was unable to
identify the assailant. After the shots were fired, Robertson
backed out of her driveway and told her to go inside.
Although the police received calls to the 911 emergency
dispatch service at the time of that incident, no one
connected it to Robertson's investigation until
Robertson's mother informed the police of the incident
after they had been investigating for over a month. Following
this report, police processed Robertson's car and found a
testified that the individuals involved in the driveby
shooting on April 2, 2010, were the same people who came back
on April 4. He said he knew it was Tang who had been shooting
at him on April 2 after seeing him in court. Robertson
testified that following the April 2 shooting, he became
concerned about his safety as well as the safety of his
family, so he obtained an assault rifle, which he hid on the
side of his house.
days later, on Easter 2010, Robertson noticed the individuals
who were involved in the previous driveby shooting when they
pulled up onto the street real slow. Robertson then saw the
“African guy” in the Mazda pull out a gun. He
said that he saw three shots fired and that he then ran and
grabbed his weapon and began firing. He testified that at the
time he was shooting, he was afraid, fearing for his own life
and his family. At the time, his mother, aunt, grandmother,
grandfather, 3-year-old daughter, sister, sister's
children, and cousins were at his mother's home. After he
finished firing, he did not continue chasing the victims, but
instead, he ran away. He did not talk to the police because
he did not want to go back to the scene of the crime for fear
that more people were out looking for him.
close of evidence, the trial court determined that it would
instruct the jury on self-defense, but not on defense of
others. Robertson's counsel objected to the court's
exclusion of the defense of others instruction, arguing that
both Robertson and Blair testified that many people were
around, including children. Blair testified that children
were outside in Robertson's yard, and Robertson testified
that his family and children were present. Counsel argued
that Robertson testified that shots were fired in his general
direction, which was the same direction where others were
present. He argued that the circumstances on April 4, 2010,
combined with the shooting on April 2, warranted
Robertson's belief that deadly force was imminent to
himself and his family. The trial judge rejected
counsel's arguments and refused to instruct on defense of
deliberations, the jury foreman sent a note to the judge
asking what to do if a juror visited the scene of the crime.
The juror appeared before the trial court judge and admitted
his actions. The juror stated that he visited the scene both
at 6 p.m. and after dark in order to better understand the
undulation of the area. According to the juror, he had been
mistaken as to where the shooter had been standing, but
understood it a little bit better after visiting the scene.
He denied relaying the circumstances of his visit to other
jurors; rather, he explained that his visit came up when he
told the rest of the jury that he knew a particular hill was
steep because he had driven out and visited it. The rest of
the jury interrupted him and told him not to tell them
anything else. He also admitted that he later realized that
the steepness of the hill did not have anything to do with
the claims at issue.
trial court judge dismissed the juror and informed the jury
that he was excusing the juror who visited the scene of the
crime. He told them that the previously dismissed alternate
juror had rejoined the jury. The alternate juror said that he
had been able to follow the judge's instructions and had
not discussed the case with anyone. The trial court judge
instructed the jury to start its deliberations over to give
the alternate juror a chance to fully participate. The case
was then resubmitted to the jury.
counsel made a record that he had discussed the issues
relating to the jury with Robertson. Robertson's counsel
said he told Robertson that they could ask for a mistrial but
that they instead decided to continue with the current jury.
Robertson's counsel said that Robertson consented. The
jury ultimately found Robertson guilty of discharging a