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Robertson v. Frakes

United States District Court, D. Nebraska

May 31, 2018

KEENON A. ROBERTSON, Petitioner,
v.
SCOTT FRAKES, Director of Nebraska Department of Correctional Services; Respondent.

          MEMORANDUM AND ORDER

          Richard G. Kopf, Senior United States District Judge

         This 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.

         I. CLAIMS

         Summarized 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 court:

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.

         II. BACKGROUND

         A. Conviction and Sentence

         The 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).

         On 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.

         On 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.

         On May 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.

         1. State's Motion to Continue Trial

         At a 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.

         Robertson 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.

         On 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.

         2. Trial Testimony

         At 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.

         According 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.

         The 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 the shooter.

         The 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 vehicle.

         Eyewitnesses 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.

         A 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 locate one.

         Laboratory 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.

         Several 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.

         Robertson's 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.

         Tang's 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.

         Blair, 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 bullet hole.

         Robertson 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.

         Two 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.

         3. Jury Instructions

         At the 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 others.

         4. Jury Conduct

         During 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.

         The 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.

         Robertson's 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 ...


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