United States District Court, D. Nebraska
TILLMAN T. HENDERSON, Petitioner,
SCOTT FRAKES,  and MICHELLE CAPPS, Respondents.
MEMORANDUM AND ORDER
RICHARD G. KOPF, SENIOR UNITED STATES DISTRICT JUDGE
matter is before the court on preliminary review of
Petitioner Tillman T. Henderson's Petition for Writ of
Habeas Corpus (filing no. 1) brought pursuant to 28
U.S.C. § 2254. The purpose of this review is to
determine whether Petitioner's claims, when liberally
construed, are potentially cognizable in federal court.
Condensed and summarized for clarity, Petitioner's claims
Claim One: Petitioner was denied effective assistance of
counsel because trial counsel (1)
failed to raise and argue Petitioner's actual innocence
(filing no. 1 at CM/ECF p. 19); (2)
failed to move to compel DNA and GSR testing (id. at
CM/ECF pp. 19-20, 47-49); (3)
failed to interview or call witnesses Joeanna Ball, Deontae
Marion, and Timothy Washington to testify (id. at CM/ECF
pp. 20- 23); (4) failed to request an
instruction on a co- conspirator rule and its application to
hearsay exceptions (id. at CM/ECF p. 44);
(5) failed to object to Ramone Navarez's
testimony based on irrelevance until after his testimony was
complete (id. at CM/ECF pp. 52-53);
(6) failed to impeach Officer Sarka's
testimony, to introduce audio and video evidence from
Sarka's cruiser to the jury, and to move to strike the
portion of Sarka's testimony “identifying the
defendant as the shooter from what someone else told
him” (id. at CM/ECF pp. 56-57).
Claim Two: Petitioner was denied effective assistance of
counsel because trial and appellate counsel
(1) failed to argue State v.
Tompkins which is based off U.S. v. Hahn
against the State raising the good faith exception for the
first time on appeal (id. at CM/ECF pp. 24-25);
(2) failed to assign error to the trial
court's refusal to give a limiting instruction regarding
the cell phone text messages (id. at CM/ECF p. 28);
(3) failed to object or assign error to
photos of an individual believed to be Jimmy Levering
flashing gang signs being shown to the jury (id. at
CM/ECF pp. 30-31); (4) failed to object
or assign error to the State showing the jury a photo of a
coat worn by Petitioner the night of his arrest and saying
the coat had bloodstains on it (id. at CM/ECF pp.
60-61); and (5) failed to request an
attempted manslaughter instruction or assign error to the
instruction not being given (id. at CM/ECF pp.
Claim Three: Petitioner was denied his constitutional right
to a fair trial because (1) the
State committed prosecutorial misconduct by its use of the
“J-town” text messages (id. at CM/ECF pp.
26-27); (2) the trial court refused to
give a limiting instruction regarding the cell phone text
messages (id. at CM/ECF p. 29); (3)
the trial court denied Petitioner's motion for a mistrial
after Detective Nick Herfordt identified a photo found on the
cellular phone in Petitioner's possession at the time of
his arrest as Jimmy Levering “an infamous gang
member” (id. at CM/ECF pp. 34-36);
(4) the trial court erred in admitting the
cell phone text messages because such evidence was
inadmissible hearsay (id. at CM/ECF at pp. 39-40);
(5) the trial court erred in admitting the
cell phone text messages as statements of a co-conspirator
(id. at CM/ECF pp. 43-44); and (6)
the trial court failed to instruct the jury on a
co-conspirator rule and its application to hearsay exceptions
(id. at CM/ECF p. 44).
court determines that these claims, when liberally construed,
are potentially cognizable in federal court. However, the
court cautions Petitioner that no determination has been made
regarding the merits of these claims or any defenses to them
or whether there are procedural bars that will prevent
Petitioner from obtaining the relief sought.
THEREFORE ORDERED that:
initial review of the habeas corpus petition (filing no.
1), the court preliminarily determines that
Petitioner's claims, as they are set forth in this
Memorandum and Order, are potentially cognizable in federal
June 10, 2019, Respondents must file a
motion for summary judgment or state court records in support
of an answer. The clerk of the court is directed to set a pro
se case management deadline in this case using the following
text: June 10, 2019: deadline for
Respondents to file state court records in support of answer
or motion for summary judgment.
Respondents elect to file a motion for summary judgment, the
following procedures must be followed by Respondents and
A. The motion for summary judgment must be accompanied by a
separate brief, submitted at the time the motion is filed.
B. The motion for summary judgment must be supported by any
state court records that are necessary to support the motion.
Those records must be contained in a separate filing
entitled: “Designation of State Court Records in
Support of Motion for Summary Judgment.” C. Copies of
the motion for summary judgment, the designation, including
state court records, and Respondents' brief must be
served on Petitioner except that Respondents are
only required to provide Petitioner with a copy of the
specific pages of the record that are cited in
Respondents' motion and brief. In the event that the
designation of state court records is deemed insufficient by
Petitioner or Petitioner needs additional records from the
designation, Petitioner may file a motion with the court
requesting additional documents. Such motion must set forth
the documents requested and the reasons the documents are
relevant to the cognizable claims.
D. No later than 30 days following the filing of the motion
for summary judgment, Petitioner must file and serve a brief
in opposition to the motion for summary judgment. Petitioner
may not submit other documents unless directed to do so by
E. No later than 30 days after Petitioner's brief is
filed, Respondents must file and serve a reply brief. In the
event that Respondents elect not to file a reply brief, they
should inform the court by filing a notice stating that they
will not file a reply ...