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Yanga v. State

United States District Court, D. Nebraska

July 10, 2018

EMMANUEL S. YANGA, Petitioner,
v.
STATE OF NEBRASKA, DIR. SCOTT FRAKES, and MADSEN, Warden, Respondents.

          MEMORANDUM AND ORDER

          RICHARD G. KOPF SENIOR UNITED STATES DISTRICT JUDGE

         Petitioner 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.

         The Claims

         Condensed 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 Clause.
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.[1]

         Background

         Respondents 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.

         Procedural History

         1. After a bench trial, Yanga was convicted of misdemeanor domestic assault. At the trial, Petitioner was represented by Abby Romshek and Todd Molvar.

         2. On March 9, 2015, he was sentenced to 60 days jail to run consecutive to any other sentence.[2] (Filing no. 6-6 at CM/ECF p. 16.)

         3. 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.

         4. On 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.

         5. 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.

         6. On 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.)

         7. The 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.)

         8. The 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. ยง 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 ...

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