United States District Court, D. Nebraska
LARON M. JONES, Petitioner,
STATE OF NEBRASKA, SCOTT R. FRAKES, Director, Nebraska Correctional Services; and MICHELL CAPPS, Warden, Nebraska State Penitentiary; Respondents.
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge
matter is before the court on Petitioner Laron M. Jones'
(“Petitioner” or “Jones”) Amended
Petition for Writ of Habeas Corpus. (Filing No. 10.)
For the reasons that follow, Petitioner's Amended
Petition is denied and dismissed with prejudice.
and condensed, and as set forth in the court's initial
review order (filing no. 11), Jones asserted the
following claims that were potentially cognizable in this
Claim One: Petitioner was denied effective assistance of
counsel and a fair trial because trial counsel (1)
failed to suppress, object to, and properly impeach the
identification testimony of witnesses Alanna Delany, Saraha
Richards, Dale Gaver, and Giovanni Barrios (filing no. 10
at CM/ECF pp. 21-34); (2) failed to file a motion to
dismiss (id. at CM/ECF pp. 34-35); (3) failed to
properly investigate and call numerous witnesses provided to
counsel by Petitioner who were important to Petitioner's
alibi defense (id. at CM/ECF pp. 36-41); and (4)
generally failed to conduct an adequate pretrial
investigation and to gather defense evidence (id. at
CM/ECF pp. 41-45).
Claim Two: Petitioner's right to due process was violated
when the prosecution failed to disclose (1) the recording of
Petitioner's police interview and (2) the photographic
line up shown to Jenna McBride in violation of
Brady. (Id. at CM/ECF pp. 63-67.)
Claim Three: Petitioner was denied effective assistance of
counsel because appellate counsel failed to raise on
direct appeal that trial counsel was ineffective (1) for the
reasons set forth in Claim One and (2) for failing to raise
Brady violations. (Id. at CM/ECF pp.
Claim Four: Petitioner was denied due process and the right
to a fair trial because (1) Nebraska's second-degree
murder statute is facially unconstitutional as it does not
provide fair warning sufficient to prevent arbitrary
enforcement (id. at CM/ECF pp. 73-89) and (2) the
substantive change to the elements of second degree murder
and sudden quarrel manslaughter is a new rule of
constitutional law that should be applied retroactively to
Petitioner (id. at CM/ECF pp. 93-95).
Claim Five: Petitioner was denied due process and the right
to a fair trial because the trial court committed plain error
in giving Jury Instruction No. 8. (Id. at CM/ECF pp.
(Filing No. 11 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. Jones, 293 Neb. 452, 878
N.W.2d 379 (2016) (filing no. 13-1). 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).
Events Surrounding Shooting
early morning hours of March 7, 2014, a group of friends
gathered at the home of Alanna Delaney for an
“after-hours” party. Those in attendance included
Delaney; Saraha Richards; Jamie Thiem; Dale Gaver; Josue
Sanchez; Giovanni Barrios; D'Angelo Goods; and the
decedent, Samuels, among others. Around 2:30 a.m., three
black males and one black female arrived uninvited at the
party. One of the black males was Milton Butler, who came to
the party to confront Thiem, his ex-girlfriend and the mother
of his child. One of the black males was identified as Jones.
The other black male and black female were never identified.
barged into the residence and began yelling at Thiem. Then he
pulled her out of the house by her hair, banging her head
against a doorframe on the way out. Others at the party were
concerned and followed them outside. Sanchez came to
Thiem's aid, and a fight ensued in the front yard with
Butler, Jones, and the unidentified black male teaming up
against Sanchez. Jones brandished a gun and stated that
anyone who jumped in to help Sanchez would be shot. The fight
dissipated after Sanchez was knocked unconscious and taken
back into the house by his friends.
Jones, and the unidentified black male and black female got
into their vehicles and began leaving the scene. Most of the
people from the party went back inside the house. As Butler
was backing his vehicle out of the driveway, Goods came
outside to retrieve something from the front yard. Butler
then stopped his vehicle, got out, and began a second
altercation with Goods. Just as the altercation was about to
turn physical, several shots were fired into the air,
followed by a pause, and then several more shots were fired
toward the house. Samuels was standing on the porch and
suffered gunshot wounds in his lower right leg and in the
right side of his neck. He died from those injuries.
testified that during the initial altercation with Sanchez,
an individual she knew as “Clown” flashed a gun
from his waistband and told her not to interfere with the
fight or she would be shot. She was standing in the middle of
the yard when shots rang out. Gaver pushed her to the ground
and told her to stay down. While lying on the ground, she
lifted her head and clearly observed “Clown”
shooting the gun toward the porch.
testified that she was familiar with both “Clown”
and Butler and that there was no doubt in her mind it was
“Clown” shooting the gun, not Butler. Delaney
knew Butler due to Butler's relationship with Thiem, and
she had met him approximately 5 to 10 times. She was familiar
with “Clown” from having met him at a location
she described as a haunted house and a couple of times at her
house or a bar when he was with Butler. Delaney described
Butler as “skinnier” and having a “fade or
a brush cut” hairstyle. By contrast, Delaney stated
that “Clown” was “thicker, ” and she
described his hairstyle as “French braided to the
scalp.” She stated that “Clown” was wearing
a black T-shirt and blue jeans. Delaney identified Jones in
court as “Clown.”
knew Butler through Thiem and described him as being skinny
and having short hair. She had also met “Clown”
on a couple of prior occasions, including a New Year's
Eve party approximately 3 months prior to this incident. She
described “Clown” as similar in height to Butler,
but “heavier.” Richards stated that before the
shooting occurred, “Clown” said that if anyone
interfered with the fight that was going on, that person was
going to get shot. She said that “Clown” fired
the first few shots in the air, then lowered the gun and
started shooting at the house. Richards identified Jones in
court as “Clown.”
testified that he saw “Clown” display the gun
prior to the shooting and then observed him fire the gun
three times into the air. Gaver started running toward the
side of the house and heard more shots fired. As he got to
the corner of the house, he turned around and saw
“Clown” aiming and shooting the gun at the house.
He explained that although it was dark outside, he could see
what was going on because a street light was on, and that he
was only about 10 feet away when he observed
“Clown” flash the gun. Gaver described
“Clown” as wearing a hoodie and a darker shirt.
Gaver stated that “Clown” was wearing a hat
initially, but was no longer wearing the hat once he became
involved in the altercation with Sanchez. Gaver identified
Jones in court as “Clown.”
described the shooter as shorter and stockier with
“nappy” braided hair that looked as if it had not
been freshly done. Goods testified that during his
altercation with Butler, the shorter, stockier individual
approached the yard and asked, “‘What's
up?'” Goods observed the man firing shots into the
air, then aiming and shooting at the house. He did not see
Butler or anyone else with a gun, other than the stockier
black male with nappy hair.
testified that he attempted to stop the fight, but that one
of the black men flashed a gun and told him to back up.
Barrios described this man as having a “[b]igger build,
stockier, facial hair” and wearing jeans and a hoodie.
Barrios identified Jones in court as that man.
witnesses were separated at the scene and individually
transported to police headquarters to be interviewed. Jones
was developed as a suspect as a result of those interviews.
Delaney, Richards, and Gaver each identified Jones in a
photographic lineup as the shooter. Barrios identified Jones
as the man that brandished a gun during the initial
following day, officers executed a search warrant at a
residence Jones shared with his girlfriend, Jenna McBride.
She confirmed that Jones' nickname is
“Clown.” She described Jones as “a little
bit shorter, stockier with longer hair” that is
“braided back.” McBride directed officers to the
clothes Jones had been wearing the night before, which
included a pair of dark jeans, a black T-shirt, and a light
gray zip-up hoodie with a broken zipper.
was taken in and interviewed by law enforcement. She
testified that she received a text message from Jones at 3:04
a.m. on March 7, 2014, asking her to pick him up at his
aunt's house as soon as possible. When she picked him up
approximately 15 minutes later, he was with Butler and
another older black male who went by the name of
“Mario.” McBride described Jones' demeanor as
“mad and irritated.” Jones told McBride about the
fight and mentioned that someone had been shot.
was arrested and charged with first degree murder, use of a
deadly weapon (firearm) to commit a felony, and possession of
a deadly weapon by a prohibited person.
Motion to Suppress
to trial, Jones moved to suppress witness identification
testimony, alleging that the identification procedure used by
police was unnecessarily suggestive and tainted the
identifications. The evidence adduced at the hearing showed
that a lineup consisting of six photographs was used, which
accidentally included two photographs of Jones: one in
position No. 5, and one in position No. 6. The detective who
created this lineup attributed the error to sloppiness on his
lineup was shown to at least two witnesses, including
Delaney, who identified Jones in position No. 5. The other
witness did not identify anyone in the lineup and did not
identify Jones at trial. It is unknown whether any other
witnesses were shown this flawed lineup.
suppression hearing, the State offered the following
testimony: The police separated the witnesses at the scene
and transported them to the police station in separate
cruisers, the witnesses were kept in separate areas at the
station, and officers were standing by to make sure they did
not converse with one another.
testified that the fact that “Clown” was depicted
twice in the photographic lineup did not affect her
identification of him. In fact, she did not even notice
“Clown's” photograph in position No. 6 until
she was reviewing the lineup later in the county
attorney's office. The detective that administered the
lineup was also unaware of the mistake until she returned to
her desk after showing it to Delaney. At that point, a new
photographic lineup was created in which the photograph in
position No. 6 was replaced with a different photograph;
however, the other photograph of Jones remained in position
Gaver, and Barrios were shown the corrected lineup. Richards
and Gaver identified the shooter in position No. 5. Richards
wrote on the comments section that she was “110,
000%” sure he was the shooter. Barrios identified the
person who flashed the gun in position No. 5.
witnesses' cell phones were confiscated, and they were
told not to communicate with other witnesses until all of
them had been interviewed. All of the witnesses were
admonished not to speak to other witnesses about their
identifications. Delaney, Richards, Gaver, and Barrios
testified that they did not talk to any other witnesses prior
to being interviewed and did not discuss their
identifications with any other witnesses.
district court issued a written order denying Jones'
motion to suppress. The court found that Delaney was the only
witness who saw the photographic lineup that had two pictures
of Jones. The other witnesses were shown photographic lineups
that contained only one photograph of Jones.