United States District Court, D. Nebraska
EMMANUEL S. YANGA, Petitioner,
STATE OF NEBRASKA, DIR. SCOTT FRAKES, and MADSEN, Warden, Respondents.
MEMORANDUM AND ORDER
RICHARD G. KOPF SENIOR UNITED STATES DISTRICT JUDGE
has filed an amended petition seeking a writ of habeas corpus
(filing no. 4). I now deny the petition and dismiss it with
prejudice. No certificate of appealability will be issued. My
reasons for doing so are set forth below.
and summarized for clarity, the claims asserted by Petitioner
regarding the state misdemeanor case in the County Court of
Lancaster County, Nebraska (county court # CR 14 0017008,
appeal to district court # CR-15-552 and appeal to the
Nebraska Court of Appeals # A-17-728) are set forth below:
Claim One: Both trial counsel and appellate
counsel [who were different] provided ineffective assistance
of counsel under the Sixth Amendment.
Claim Two: The prosecutor engaged in
prosecutorial misconduct in violation of the Due Process
Claim Three: The trial court abused its
discretion in violation of the Due Process Clause.
Claim Four: The Petitioner was denied Due
Process of Law, Equal Protection of the Law, and the Fifth
Amendment right to remain silent and to be free from double
jeopardy by the trial court.
As I noted at the time of initial review (filing no. 5 at
CM/ECF p. 2 n.1):
Petitioner's amended petition . . . is the one and only
operative petition and all prior petitions are dismissed
without prejudice. The amended petition is vague. I am sorry
that I cannot focus this case any better, but counsel for the
Respondent should respond as best counsel can to the
“supporting facts” portion of each claim. To the
extent that Petitioner raises other claims beyond the four
set forth above, I deny them because they fail to state
cognizable federal claims.
have filed an answer (filing no. 7), the state court records
(filing no. 6), and a brief (filing no. 8). Petitioner has
filed a response and brief (filing no. 9; filing no. 10) as
well. Mostly, Respondents argue that the claims have been
procedurally defaulted without excuse. Petitioner's
response and brief makes no (or at least very little) effort
to address the procedural default issue.
After a bench trial, Yanga was convicted of misdemeanor
domestic assault. At the trial, Petitioner was represented by
Abby Romshek and Todd Molvar.
March 9, 2015, he was sentenced to 60 days jail to run
consecutive to any other sentence. (Filing no. 6-6 at CM/ECF p.
Yanga appealed to the district court, but did not file a
statement of errors, so his conviction was reviewed for plain
error, and none were found. As a result, the district court
affirmed his conviction and sentence. (Filing no. 6-6 at
CM/ECF pp. 40-47.) Douglas Kerns represented Petitioner.
direct appeal to the Nebraska Court of Appeals, Yanga
assigned as error that the district court erred in (1) not
finding that the county court erred and abused its discretion
and deprived Yanga of his right to testify by overruling his
motion to withdraw his rest; (2) not finding counsel was
ineffective for not requesting a separate hearing to
determine whether the statements made by Yanga to the police
were admissible; (3) not finding that counsel was ineffective
for not requesting a presentence investigation; (4) not
finding that the county court erred in denying Yanga's
motion to dismiss; (5) not finding that the cumulative effect
of errors made by the county court and/or ineffective
assistance of counsel amount to a violation of Yanga's
right to a fair trial; (6) not finding that the county court
erred and abused its discretion in finding him guilty when
such finding was not supported by the evidence; and (7) not
finding that the county court imposed an excessive sentence.
Once again, Douglas Kerns represented Petitioner.
Yanga's conviction was affirmed on direct appeal by the
Nebraska Court of Appeals in a Memorandum Opinion filed May
13, 2016. (Filing no. 6-2.) The Court of Appeals ruled that
most of the seven assignments of error save for two were
defaulted because Yanga failed to provide the district court
(then serving as an appellate court reviewing the county
court's rulings) with a timely statement of errors.
Regarding the two claims that escaped the foregoing default,
the court considered and rejected the argument that the
county court erred by failing to allow Yanga to withdraw his
rest so that he might change his mind and testify. As for the
claim that trial counsel was ineffective because counsel
allegedly failed to seek suppression of statements that Yanga
made to the police, the Court of Appeals found that this
alleged error was defaulted for the separate and additional
reason that Yanga had not briefed and argued that matter to
the Court of Appeals despite having assigned it as error.
Yanga's petition for further review was denied by the
Nebraska Supreme Court on July 13, 2016. (Filing no. 6-1 at
CM/ECF p. 2.) The petition was limited to one issue. (Filing
no. 6-3.) That issue was that the county judge had abused his
discretion in refusing to allow Petitioner to withdraw his
rest and the Court of Appeals erred by not so holding.
September 19, 2016, Yanga filed a pro se post-conviction
action, alleging essentially the same issues as were raised
in his direct appeal. (Filing no. 6-15.)
district court denied an evidentiary hearing, and denied
post-conviction relief on June 5, 2017. (Filing no. 6-15 at
CM/ECF pp. 16-21.) The court ruled:
Here, the defendant's claims and assignments of error
have previously been raised on appeal. He has not
produced any evidence to establish that his counsel was
defective or that he was prejudiced by his counsel's
actions or inactions. Even if the defendant's claims
were not procedurally barred, he has not asserted any
sufficient factual allegations which constitute an
infringement of his rights under the Nebraska or United
States Constitution. Because he is both procedurally
barred, and his motions allege only conclusions of fact or
law, he is entitled to no relief.
Id. at p. 19. (Italics added.)
Nebraska Court of Appeals summarily affirmed the denial of
post-conviction relief on November 21, 2018. (Filing no. 6-12
at CM/ECF p. 2.) It ruled that:
Motion of appellee for summary affirmance sustained; judgment
affirmed. See Neb. Ct. R. App. P. §
2-107(B)(2). Appellant's claims were either procedurally
barred, had already been raised and resolved on direct
appeal, or his petition contained insufficient factual
allegations of an infringement of his constitutional rights.
Also, an alleged error must be both specifically assigned and
specifically argued in the brief of the party asserting the
error to be ...