United States District Court, D. Nebraska
MEMORANDUM AND ORDER
RICHARD G. KOPF SENIOR UNITED STATES DISTRICT JUDGE.
matter is before the court on Petitioner Rufus Blaine
Freemont's (“Petitioner” or
“Freemont”) Petition for Writ of Habeas Corpus.
(Filing No. 1.) For the reasons that follow, Petitioner's
habeas petition is denied and dismissed with prejudice.
and condensed, and as set forth in the court's initial
review order (filing no. 4), Petitioner asserted the
following claims that were potentially cognizable in this
Claim One: Petitioner was denied effective assistance of
counsel because trial counsel (1) failed to elicit
evidence and testimony from witnesses to support theory that
a third party fired the shots; (2) failed to object to
inadmissible identification evidence; (3) failed to request
cautionary jury instruction regarding accomplice testimony;
(4) failed to object to and ask for mistrial based on
State's closing argument regarding Petitioner's
“consciousness of guilt”; (5) failed to request
continuance or create a deposition outside the presence of
the jury when the State provided an untimely ballistics
report; (6) failed to adduce significant forensic evidence
regarding bullet trajectory; (7) failed to elicit evidence on
Petitioner's lack of motive; (8) failed to object to
testimony by Martin regarding post-Miranda
statements of Samantha Vawter that were not made available in
pretrial discovery; and (9) failed to make Petitioner aware
of his speedy trial rights.
Claim Two: Petitioner was denied effective assistance of
counsel because trial and appellate counsel failed to argue
for a sudden quarrel jury instruction when all the evidence
supported a manslaughter conviction.
Claim Three: Failure to include a sudden quarrel jury
instruction amounts to a violation of Petitioner's right
to Due Process under the Fourteenth Amendment.
(Filing No. 4 at CM/ECF pp. 1-2.)
Conviction and Sentence
court states the facts as they were recited by the Nebraska
Supreme Court in State v. Freemont, 284 Neb. 179,
817 N.W.2d 277 (2012). (Filing No. 11-2.) 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).
was charged with second degree murder in connection with the
killing of Andrew Galligo on June 18, 2010. The following
evidence was adduced at trial.
responded to a report of a shooting on 24th and Vinton
Streets in Omaha, Nebraska. Sgt. Matthew Rech observed
Galligo lying on the ground, surrounded by four individuals.
Galligo had been shot in the chest and died as a result of
bystander witnesses, who were either at the scene or nearby
at the time of the shooting, testified at trial. Each witness
testified that prior to the shooting, Galligo had been
engaged in a confrontation with a woman, later identified as
Claudette Loera, in a parking lot.
to witnesses, prior to the shooting, Loera was driving a
white Chevrolet Cobalt, which was later identified as
belonging to Samantha Vawter. Loera's sister, Christa
Harlan, was seated in the passenger seat, and Vawter and
Freemont were seated in the back seat. According to Harlan
and Vawter, as the vehicle approached 24th and Vinton
Streets, the passengers saw Galligo walking down 24th Street.
Galligo was wearing red and black, colors which are
associated with a gang to which Loera belonged. Loera turned
the car around and yelled at Galligo, asking about his gang
affiliation. Loera “flipped” a gang sign at
Galligo by making a gesture with her hand. Galligo was a
member of a different gang, and “threw up” a gang
sign at Loera in response. Loera then pulled the vehicle into
a nearby parking lot, exited the vehicle, and confronted
and Galligo had a verbal confrontation, during which Harlan
exited the vehicle and told Loera to leave Galligo alone and
get back in the vehicle. Loera spit on Galligo and moved to
return to the vehicle. Galligo asked Loera if she was getting
a gun, and attempted to walk away from the vehicle. Loera
followed Galligo, at which time four or five gunshots were
fired from the vehicle and Galligo was struck in the chest.
the shooting, Loera immediately returned to the vehicle and
drove from the scene. Freemont was let out at 17th and
Ontario Streets. Loera then drove to an alley where she,
Vawter, and Harlan changed their clothes to avoid being
identified. Loera attempted to hide the vehicle behind an
abandoned house, and then she walked with the others to the
house of a friend named “Melissa.”
trial, a witness testified that she and her sister were
shopping at a strip mall near 24th and Vinton Streets at the
time of the shooting. As they were leaving a nearby store,
the witness saw a white car, which was parked in front of the
exit to the parking lot. The witness entered her car and
waited for the white car to move so she could exit. She
testified that she saw Loera and Galligo arguing and observed
a man in the back seat of the white car place his hand,
holding a gun, out of the window and shoot Galligo. The
witness' sister also testified that she saw the argument
between Loera and Galligo and witnessed shots being fired
from the back seat of the white car, but she did not see who
fired the gun.
witness who was also in the parking lot at the time of the
shooting testified that he observed an altercation taking
place in front of a white Chevrolet Cobalt and that he heard
gunfire, though he did not see who fired the shots.
individual who was also present in the parking lot witnessed
the altercation in front of a white vehicle. He testified
that he witnessed a person, whom he identified as a passenger
of the vehicle, attempting to break up the fight between the
driver of the vehicle and another person. He stated that the
person who shot Galligo was seated in the back seat of the
vehicle. He testified that he had observed three persons in
the vehicle at the time of the shooting-the driver, front
passenger, and the rear passenger-and that he did not see the
gun that fired the shots.
witness testified that she was in the area of 24th and Vinton
Streets at the time of the shooting and that she observed two
people dressed in red engaged in an argument. She heard the
gunfire that followed, and the windshield of her car was
struck with a bullet. She was unaware of who fired the shots.
witness also testified that he was in the area at the time of
the shooting. He was previously acquainted with Loera and
Galligo and heard them arguing in the parking lot. He heard
the gunshots, but could not identify who fired the shots.
and Vawter testified. Harlan is Loera's sister, and she
had been living with Melissa at the time of the shooting.
Harlan testified that she knew Freemont and was acquainted
with Vawter. Loera had contacted Vawter for a ride earlier
that day to go to Westroads Mall and “get some
weed.” Loera was driving Vawter's car, and on the
way home, Harlan and Loera stopped to pick up Freemont.
Harlan testified that Vawter and Freemont had a child
together, but that she was not well acquainted with Vawter.
Freemont was carrying a backpack when they picked him up
earlier that day. After picking up Freemont, Loera was
driving, Harlan was seated in the front passenger seat,
Vawter was in the back seat behind the driver, and Freemont
was in the back passenger seat. They saw Galligo walking when
they stopped at a light.
recounted the argument that followed and testified that she
got out of the car and told Loera to leave Galligo alone,
that he was their cousin, and to get back into the car. Loera
started back to the car, and Harlan told Galligo to keep
walking, when Loera turned around as if to follow Galligo.
Loera then turned to Harlan and returned to the car. As
Harlan was getting into the car, she heard gunshots and was
startled because neither Loera nor Galligo had a weapon.
Harlan testified that the shots came from the back seat of
the car and that Freemont had fired the gun. She did not
observe what kind of gun it was. Harlan observed Freemont
holding the gun toward the car window. Loera returned to the
car and drove Harlan, Vawter, and Freemont from the scene.
State asked Harlan if she had witnessed Freemont carrying a
gun “a few days before” the incident. Freemont
objected to this question, and an off-the-record discussion
was held at the bench, after which the objection was
overruled. Harlan answered that she had seen Freemont a few
days earlier with a gun. Harlan stated that at the time,
Freemont was carrying the gun in a backpack that looked the
same as the one he was carrying on the day of the shooting.
after the incident, Harlan was questioned by police, at which
time she gave the officers a fake name. Police showed Harlan
a photographic array, and she identified a person other than
Freemont as the shooter. Harlan said she had lied because she
knew she had outstanding warrants and because she was scared.
Loera had apparently threatened Harlan and Vawter, telling
Harlan that if she was going to “cry, ” Loera
would have to kill her.
was arrested the day after the incident in connection with
Galligo's death. Harlan spoke to Loera after she was
arrested, and Harlan told Loera that she had purposely named
the wrong person as Galligo's shooter. Police confronted
Harlan with this conversation, showed her the same
photographic array, and asked her again to identify the
shooter. Harlan identified Freemont as the shooter at that
testified that she was seated in the back seat of the car at
the time of the shooting. She stated she knew neither Loera
nor Galligo possessed a weapon because both had lifted their
shirts to show that they did not. Vawter said that Freemont
told Loera to get back into the car while the two were
arguing. After Harlan got out of the car, Freemont reached
into his backpack and pulled out a gun. He told Vawter to
“sit back, ...