Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Henderson v. Frakes

United States District Court, D. Nebraska

April 25, 2019

TILLMAN T. HENDERSON, Petitioner,
v.
SCOTT FRAKES, [1] and MICHELLE CAPPS, Respondents.

          MEMORANDUM AND ORDER

          RICHARD G. KOPF, SENIOR UNITED STATES DISTRICT JUDGE

         This matter is before the court on preliminary review of Petitioner Tillman T. Henderson's Petition for Writ of Habeas Corpus (filing no. 1)[2] 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 are:

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. 64-65).
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).

         The 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.

         IT IS THEREFORE ORDERED that:

         1. Upon 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 court.

         2. By 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.

         3. If Respondents elect to file a motion for summary judgment, the following procedures must be followed by Respondents and Petitioner:

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 the court.
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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.