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. 13). 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.
have filed an answer (filing no. 16), the state court records
(filing no. 15), and a brief (filing no. 17). Petitioner has
filed a response and brief (filing no. 18, filing no. 19) as
well. Mostly, Respondents argue that the claims have been
procedurally defaulted without excuse and that if they were
not defaulted the claims should be denied because of the
deference I am required to give to state court decisions.
Petitioner's response and brief makes no (or at least
very little) effort to address the procedural default issue
and the deference issue.
previously ruled, condensed and summarized for clarity, the
claims asserted by Petitioner regarding the state felony case
in the District Court of Lancaster County, Nebraska (district
court #CR14-1382 and appeal to the Nebraska Court of Appeals
#A-17-655) are set forth below:
Claim One: Both trial counsel and appellate
counsel provided ineffective assistance of counsel under the
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 and Equal Protection of the law when the jury
was not properly instructed.
(Filing no. 14.)
Yanga was convicted of two counts of attempted second degree
assault, one count use of a deadly weapon, one count of
criminal mischief over $1500, and one count of third degree
assault. The jury returned the verdict on March 4, 2015.
(E.g., filing no. 15-6 at CM/ECF p. 139.) At trial, Yanga was
represented by Christopher Eickholt. On March 23, 2015, and
after trial, Eickholt moved to withdraw. (Filing no. 15-6 at
CM/ECF p. 146.) The motion was granted and Douglas Kerns was
appointed to represent Petitioner on April 6, 2015. (Filing
no. 15-6 at CM/ECF p. 148). Kerns appeared as counsel for
Petitioner at sentencing and throughout the direct appeal.
Petitioner was sentenced to 20 to 36 months for counts I, II
and IV and to 2 to 3 years for Count III, all to be served
consecutively, and to 180 days for count V, to be served
concurrently with Count IV. (Filing no. 15-6 at CM/ECF pp.
direct appeal, Yanga assigned as error that (a) the jury
instructions were either inappropriate or unconstitutionally
vague; (b) the district court erred in denying his motion for
directed verdict; (c) the district court in failing to
dismiss the charges because the state presented inconsistent
theories; (d) the district court erred in overruling defense
objections and the errors at trial had the cumulative effect
of violating his right to a fair trial, and (e) excessive
sentences were imposed. (Filing no. 15-4 at CM/ECF p. 5.)
Yanga's convictions were affirmed on direct appeal by the
Nebraska Court of Appeals in a Memorandum Opinion filed June
14, 2016. (Filing no. 15-4.) The Court of Appeals found that
(a) the jury instructions regarding pecuniary loss were
appropriate and to the extent that Yanga challenged an
underlying statute as unconstitutional the court did not
reach the issue because the issue was not properly raised and
preserved at trial as required under Nebraska law-in plain
terms that portion of the argument was defaulted (filing no.
15-4 at CM/ECF pp. 5-7); (b) the jury instruction regarding
expert testimony was appropriate because the police
officer's testimony was similar to that of an expert on
“accident reconstruction” (filing no. 15-4 at
CM/ECF pp. 7-8); (c) the evidence was sufficient to go to the
jury, in general, the motion for a directed verdict was
properly overruled and as to Count III, Yanga failed to
specifically assign and specifically argue that an alleged
lack of serious bodily injury regarding Count III required
dismissal-again, in plain terms, that portion of the argument
was defaulted (filing no. 15-4 at CM/ECF pp. 8-10); (d) the
prosecution did not proceed on mutually inconsistent theories
such that Count I-IV should have been dismissed (filing no.
15-4 at CM/ECF p. 10); (e) Yanga's complaints about
overruling objections were too general-again, that claim was,
in plain terms, defaulted under state law by the failure of
appellate counsel to be more specific (filing no. 15-4 at
CM/ECF p. 10); (f) since the sentences were within the
statutory limits and Yanga had not discussed the factors that
would warrant lower sentences the court declined to address
the issue of excessiveness and affirmed the sentences-again,
in plain terms, the argument was defaulted (filing no. 15-4
at CM/ECF p. 11.) Yanga's petition for further review was
denied by the Nebraska Supreme Court on August 16, 2016.
(Filing no. 15-3 at CM/ECF p. 3.)
October 21, 2016, Yanga filed a pro se post-conviction
action, alleging the same issues as were raised in his direct
appeal. (Filing no. 15-14 at CM/ECF pp. 12-27.)
district court denied an evidentiary hearing, and denied
post-conviction relief on June 5, 2017. (Filing no. 15-14 at
CM/ECF pp. 34-41.) In short, the court ruled (id. at
CM/ECF p. 38) that:
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
state's motion for summary affirmance of the denial of
post-conviction relief was granted by the Nebraska Court of
Appeals on November 17, 2017. (Filing no. 15-12 at CM/ECF p.
2.) The court stated:
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 made insufficient allegations which constituted
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
considered by an appellate court. See State v. Thompson, 278
Neb. 320 (2009); State v. Henry, 292 Neb. 834 (2016) .
Yanga filed a petition for further review, which was denied
by the Nebraska Supreme Court on January 9, 2018. (Filing no.
15-12 at CM/ECF p. 2.)
Yanga filed his habeas petition on January 18, 2018. (Filing
and Trial Background
state the chilling facts of the offenses and the trial
background as found by the Court of Appeals when ruling upon
the direct appeal:
Yanga was charged with two counts of attempted assault in the
second degree, one count of use of a deadly weapon to commit
a felony, one count of criminal mischief, over $1, 500, and
one count of assault in the third degree following events
which took place at approximately 4:30 a.m. on September 21.
Trial took place on March 2, 3, and 4, 2015.
Yanga and Mazaher Bakry had dated for almost three years, but
the relationship ended in February 2014. Bakry testified that
at approximately 9:30 p.m. on September 20, Bakry and her son
went to a birthday party at Bakry's sister's home.
Bakry's car was not available so she needed a ride to and
from the party. Tombe Ladu attended the same party and when
the party ended at about 4 a.m., he agreed to give Bakry, her
son, and another woman a ride home. Ladu testified that he
had noticed a blue car following him very closely on the
drive from the party, so much so that the lights in the rear
view mirror were blinding him. He testified that he knew
Yanga as they were part of the South Sudanese community, and
he had recognized the blue car belonged to Yanga.
The other woman was dropped off first, and when Ladu arrived
in the parking lot of Bakry's apartment complex, Bakry
saw Yanga's car leaving the complex. Ladu stopped in
front of Bakry's apartment building door. Bakry saw Yanga
make a U-turn and return toward the apartment parking lot.
Yanga parked his car and approached the door of Ladu's
car before Bakry was able to exit. Yanga called Bakry
insulting names and told her that he was not going to leave
her. Bakry exited the car and told Yanga he should leave her
alone. Yanga attempted to slap Bakry with his hand and she
threatened to call the police. Yanga kept talking to Bakry as
she led her son into the apartment building.
Ladu was still in his car, and noticed that Bakry had left
the car door open, so he exited the car to close the door,
intending to leave. As Ladu was re-entering his car, Yanga
returned and kicked him while also threatening him. Ladu told
Yanga that he was going to call the police, but as he took
his phone out of his pocket, Yanga slapped the phone out of
his hand and crushed it on the ground. At that time, Bakry
called the police and informed Yanga she was doing so. Yanga
responded that he did not care, and continued to yell at
Bakry. Yanga told Bakry “he was not a chicken”
and that he would be back, then left in the same direction
that he came from. Bakry was on the phone with the police at
the time and informed the dispatcher that Yanga had just
left. She was told to call back if Yanga returned.
As Ladu picked up his phone from where it had been damaged,
Yanga was returning to the parking lot. Bakry testified that
Yanga had been gone for approximately a minute and a half. At
that time Bakry and Ladu were standing behind Ladu's car
and Bakry shouted for Ladu to move. Ladu observed Yanga's
car approaching at a high rate of speed and could hear the
engine accelerating. Bakry reached out and literally pulled
Ladu between two parked cars stating they just barely got out
of the way of Yanga's car. Bakry heard Yanga's car
collide into Ladu's car and several other parked cars.
Ladu's car, a 2008 Chrysler 300 was hit with enough force
that it moved from its parked position and the airbags were
deployed inside of Yanga's vehicle.
Yanga struggled away from the inflated air bags and went
after Bakry and Ladu, who both fled. Yanga caught up to Ladu
and placed him in a “headlock” as they fell to
the ground. Ladu, in response, was able to “pin”
Yanga, although Yanga struggled, punching Ladu in the head.
Ladu said he was crying because it hurt so much and his arms
were weak. ...