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Freemont v. Frakes

United States District Court, D. Nebraska

April 24, 2019

RUFUS BLAINE FREEMONT, Petitioner,
v.
SCOTT R. FRAKES, Respondent.

          MEMORANDUM AND ORDER

          RICHARD G. KOPF SENIOR UNITED STATES DISTRICT JUDGE.

         This 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.

         I. CLAIMS

         Summarized 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 court:

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.)

         II. BACKGROUND

         A. Conviction and Sentence

         The 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).

         Freemont was charged with second degree murder in connection with the killing of Andrew Galligo on June 18, 2010.[1] The following evidence was adduced at trial.

         Police 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 the injury.

         Several 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.

         According 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 Galligo.

         Loera 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.

         Following 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.”

         1. Witness Testimony

         At 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.

         Another 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.

         An 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.

         Another 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.

         Another 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.

         Harlan 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.

         Harlan 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.

         The 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.

         The day 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.

         Loera 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 time.

         Vawter 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, ...


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