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Yanga v. State

United States District Court, D. Nebraska

July 16, 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. 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.[1]

         Respondents 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.

         Claims

         As I 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 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 and Equal Protection of the law when the jury was not properly instructed.

(Filing no. 14.)[2]

         Procedural Background

         1. 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.

         2. 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. 150-152.)

         3. On 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.)

         4. 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.)

         5. On 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.)

         6. The 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 relief.

         7. The 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) .

(Id.)

         8. 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.)

         9. Yanga filed his habeas petition on January 18, 2018. (Filing no. 1.)

         Facts and Trial Background

         I next 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. ...

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