Thomas v. Houston

Filing 43

MEMORANDUM AND ORDER regarding Second Amended Petition for Writ of Habeas Corpus 36 that this matter is dismissed with prejudice, and a separate judgment will be entered in accordance with this Memorandum and Order. The court will not issue a certificate of appealability in this matter. Ordered by Judge Joseph F. Bataillon. (ADB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
L.T. THOMAS,
Petitioner,
v.
ROBERT HOUSTON,
Respondent.

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4:11CV3161

MEMORANDUM
AND ORDER

This matter is before the court on Petitioner L.T. Thomas’s (“Petitioner” or
“Thomas”) Second Amended Petition for Writ of Habeas Corpus. (Filing No. 36.)
Thomas argues that he is entitled to writ of habeas corpus based on the following
claims:
Claim One:

Thomas was denied due process of law in violation of the
Fourteenth Amendment because the State of Nebraska
(“State”) failed to correct false statements made by Aybar
Crawford.

Claim Two:

Thomas was denied the effective assistance of counsel in
violation of the Sixth and Fourteenth Amendments because
Thomas’s post-conviction counsel failed to assign the
Aybar Crawford issue as error on appeal.

Claim Three:

Thomas was denied due process of law in violation of the
Fourteenth Amendment because the State failed to correct
false statements made by Roger Tucker.

Claim Four:

Thomas was denied the effective assistance of counsel in
violation of the Sixth and Fourteenth Amendments because

Thomas’s post-conviction counsel failed to assign the
Roger Tucker issue as error on appeal.
Claim Five:

Thomas was denied due process of law in violation of the
Fourteenth Amendment because the trial court failed to
give the jury a manslaughter instruction.

Claim Six:

Thomas was denied due process of law and a fair trial in
violation of the Fourteenth Amendment because Crime
Scene Investigator David Kofoed tampered with and
destroyed evidence material to Thomas’s self-defense
claim.

(Id.) For the reasons set forth below, a grant of a writ of habeas corpus is not
warranted on any of these issues.
I. BACKGROUND
A.

Conviction

The State charged Thomas by information in the Douglas County District Court
(“state district court”) with first degree murder, first degree assault, and two counts
of use of a firearm to commit a felony in the commission of these felonies. State v.
Thomas, 637 N.W.2d 632, 644 (Neb. 2002). The State subsequently filed an
amended information alleging that Thomas was a habitual criminal. Id. The evidence
presented at trial showed that:
On June 17, 1994, Thomas shot two men who were in a car near
the Stage II lounge in Omaha, Nebraska. Phillip White, the driver, was
shot in the left leg, and Rafael Petitphait, a passenger, was shot in the
back, head, and left leg.

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Following the shooting, White drove away at a high rate of speed.
Shortly thereafter, the car ran over a curb and into a brick building at
24th Street and Patrick Avenue. White died of head injuries sustained
in the automobile accident.
Prior to the shooting, Thomas met Demitrius Simpson and Russell
Wills at the Stage II lounge. The group left the lounge and were standing
near Thomas’ car when a fight broke out between two women. Simpson
attempted to stop the fight because he knew one of the women. White
and Petitphait were among the crowd that gathered in the parking lot
outside the lounge. As Petitphait also attempted to stop the fight, he was
struck by a man who was later identified as Simpson. Petitphait stopped
White from going after Simpson because White had a .22 caliber gun,
which he always carried with him. The gun was not operational,
Petitphait said.
After the fight, some of the bystanders teased Petitphait about not
fighting back. Petitphait approached Simpson, and the two began to
fight. Simpson said he was attacked by several of Petitphait’s friends.
Petitphait testified that he kept hitting Simpson until someone pulled
him off. At some point in time, shots were fired into the air, and the
crowd began to disperse.
Thomas testified that he was grabbed during the fight between
Petitphait and Simpson and that someone pointed a gun at his head. As
Thomas ran away, he heard shots fired. Thomas moved his car out of the
parking lot, took his gun out of the trunk, and walked back to the scene
of the fight. A car approached, and Thomas heard Petitphait say, “Blood,
smoke that nigger.” Thomas claimed that the driver waved a gun.
Thomas testified that he ducked and then stood up and started shooting
in self-defense.
Petitphait testified that as he and White were stopped at the traffic
light at 30th and Bedford Streets, they heard gunshots coming from the
rear of the car. When White realized Petitphait had been shot, he said he
was going to drive to a hospital. As they drove away, White said he had
also been shot. Shortly before the crash, White said he could not make
it to the hospital. The car hit a curb and then crashed into a building. A
gun was found on the floor of the driver’s side of White’s car.
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Testimony was presented to establish that White was speeding and that
he was intoxicated.
Id. at 643-644.
On February 8, 1995, a jury found Thomas guilty of second degree murder,
first degree assault, and two counts of use of a firearm to commit a felony. (Filing
No. 10-20 at CM/ECF pp. 31-32.) Thereafter, the state district court sentenced
Thomas to prison terms of 20 years to life for second degree murder, 12 to 14 years
for use of a firearm to commit second degree murder, 12 to 14 years for first degree
assault, and 10 to 12 years for use of a firearm to commit first degree assault. (Id. at
CM/ECF pp. 114-115.) The state district court ordered that the sentences be served
consecutively. (Id.)
Thomas’s appeal from his conviction and sentence was dismissed by the
Nebraska Court of Appeals on January 9, 1996, for lack of jurisdiction because
Thomas’s trial counsel signed Thomas’s poverty affidavit instead of Thomas. (Filing
No. 12-16 at CM/ECF p. 2.)
B.

First Post-Conviction Motion

Thomas filed a motion for post-conviction relief (“post-conviction motion”)
in the state district court on July 22, 1998. (Beginning at Filing No. 12-1 at CM/ECF
p. 70.) On September 6, 2000, the state district court granted Thomas post-conviction
relief. (Filing No. 12-3 at CM/ECF pp. 87-88.) It determined that Thomas’s counsel
failed to perfect a direct appeal, and that counsel’s conduct was presumptively
prejudicial. (Id. at CM/ECF p. 88.) As relief, the state district court granted Thomas
a new direct appeal. (Id.)

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C.

New Direct Appeal

On October 4, 2000, Thomas filed a notice of appeal from the original criminal
prosecution. (Filing No. 12-1 at CM/ECF p. 1.) Thomas raised numerous arguments
on appeal, including Claims One and Five now raised in his Second Amended
Petition for Writ of Habeas Corpus (i.e., that the State failed to correct false
statements made by Aybar Crawford, and that the trial court failed to give the jury a
manslaughter instruction).
On November 7, 2000, the Nebraska Supreme Court ordered the appeal moved
to its docket from the docket of the Nebraska Court of Appeals. (Filing No. 12-16 at
CM/ECF p. 5.) On January 22, 2002, the Nebraska Supreme Court affirmed
Thomas’s convictions, but vacated his sentences. The court determined that the
evidence received at Thomas’s enhancement hearing was insufficient to support a
finding that Thomas was a habitual criminal. Thomas, 637 N.W.2d at 658-659. The
court remanded the case “with directions for a new enhancement hearing and for
resentencing.” Id. at 659.
D.

Resentencing and Appeal

Following enhancement proceedings, the state district court found that Thomas
was a habitual criminal. (Filing No. 10-1 at CM/ECF p. 42.) On February 6, 2003,
the state district court resentenced Thomas to consecutive prison sentences of 20
years to life for second degree murder, 10 to 12 years on the first related weapons
conviction, 10 to 12 years for assault in the first degree, and 10 to 12 years on the
second related weapons conviction. (Id. at CM/ECF pp. 65-66.) Thomas timely
appealed to the Nebraska Supreme Court. The court affirmed the judgment of the
state district court in a detailed opinion. State v. Thomas, 685 N.W.2d 69 (Neb.
2004).

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E.

Second Post-Conviction Motion and Appeal

Thomas filed a second motion for post-conviction relief on March 22, 2005,
in the state district court. (Beginning at Filing No. 12-10 at CM/ECF p. 13.) Thomas
raised numerous arguments in his second post-conviction motion, including Claims
One and Three now raised in his Second Amended Petition for Writ of Habeas
Corpus (i.e., that the State failed to correct false statements made by Aybar Crawford
and Roger Tucker).
The state district court denied Thomas’s post-conviction motion in a long and
detailed opinion on October 9, 2008. (Filing No. 12-14 at CM/ECF pp. 48-111.)
Thomas timely appealed the denial to the Nebraska Supreme Court, which summarily
affirmed the judgment of the state district court. (Filing No. 12-16 at CM/ECF p. 16.)
F.

Motion for New Trial and Appeal

On May 21, 2010, Thomas filed a Motion for New Trial and DNA Testing.
(Filing No. 12-15 at 17.) In his motion, Thomas argued that he should receive a new
trial because Crime Scene Investigator David Kofoed tampered with and destroyed
evidence material to Thomas’s self-defense claim (i.e, Claim Six of Thomas’s Second
Amended Petition for Writ of Habeas Corpus). (Id.) The state district court denied
Thomas’s motion in a detailed opinion on August 24, 2010. (Id. at CM/ECF p. 26.)
Thomas appealed, and the Nebraska Supreme Court summarily affirmed the judgment
of the state district court. (Filing No. 12-16 at CM/ECF p. 20.)
G.

Habeas Corpus Petitions

Thomas timely filed his Petition in this court on September 23, 2011. (Filing
No. 1.) In light of the complicated procedural and legal issues involved in this matter,
the court appointed counsel to represent Thomas. Thereafter, through appointed
counsel, Thomas filed an Amended Petition for Writ of Habeas Corpus on August 10,
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2012, and a Second Amended Petition for Writ of Habeas Corpus on October 12,
2012. (Filing Nos. 26 and 36.) Thomas’s Second Amended Petition for Writ of
Habeas Corpus is the operative petition in this matter.
In response to Thomas’s petitions, Respondent filed numerous documents,
including answers, briefs, and the relevant state court records.1 (Filing Nos. 10-14,
29-30, and 40.) The court deems this matter fully submitted.
II. STANDARD OF REVIEW
A.

Standard Under 28 U.S.C. § 2254(d)

When a state court has adjudicated a habeas petitioner’s claim on the merits,
there is a very limited and extremely deferential standard of review both as to the law
and the facts. See 28 U.S.C. § 2254(d). Section 2254(d)(1) states that a federal court
may grant a writ of habeas corpus if the state court’s decision “was contrary to, or
involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). As
explained by the Supreme Court in Williams v. Taylor, 529 U.S. 362 (2000), a state
court acts contrary to clearly established federal law if it applies a legal rule that
contradicts the Supreme Court’s prior holdings or if it reaches a different result from

1

The court has carefully reviewed the voluminous state court records and notes
there are numerous pages missing from the transcript of Petitioner’s trial. (See, e.g.,
missing pages from Rafael Petitphait’s testimony at Filing No. 10-6 at CM/ECF pp.
91-92 (five pages missing), 95-95 (one page missing), 99-100 (one page missing),
110-112 (one page missing), and 113-114 (three pages missing).) Because none of
the missing pages were relevant to the court’s opinion in this matter, the court did not
direct Respondent to resubmit the state court records. See Rule 5(c) of the Rules
Governing Section 2254 Cases (“The respondent must attach to the answer parts of
the transcript that the respondent considers relevant. The judge may order that the
respondent furnish other parts of existing transcripts . . . .”).
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one of that Court’s cases despite confronting indistinguishable facts. 529 U.S. at 405406. Further, “it is not enough for [the court] to conclude that, in [its] independent
judgment, [it] would have applied federal law differently from the state court; the
state court’s application must have been objectively unreasonable.” Rousan v. Roper,
436 F.3d 951, 956 (8th Cir. 2006).
With regard to the deference owed to factual findings of a state court’s
decision, Section 2254(d)(2) states that a federal court may grant a writ of habeas
corpus if a state court proceeding “resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence presented in the State
court proceeding.” 28 U.S.C. § 2254(d)(2). Additionally, a federal court must
presume that a factual determination made by the state court is correct, unless the
petitioner “rebut[s] the presumption of correctness by clear and convincing evidence.”
28 U.S.C. § 2254(e)(1).
As the Supreme Court noted, “[i]f this standard is difficult to meet, that is
because it was meant to be.” Harrington v. Richter, 131 S. Ct. 770, 786 (2011). The
deference due state court decisions “preserves authority to issue the writ in cases
where there is no possibility fairminded jurists could disagree that the state court’s
decision conflicts with [Supreme Court] precedents.” Id. In short, “[i]t bears
repeating that even a strong case for relief does not mean the state court’s contrary
conclusion was unreasonable.” Id. However, this high degree of deference only
applies where a claim has been adjudicated on the merits by the state court. See
Brown v. Luebbers, 371 F.3d 458, 460 (8th Cir. 2004) (“[A]s the language of the
statute makes clear, there is a condition precedent that must be satisfied before we can
apply the deferential AEDPA standard to [the petitioner’s] claim. The claim must
have been ‘adjudicated on the merits’ in state court.”).
The Eighth Circuit clarified what it means for a claim to be adjudicated on the
merits, finding that:

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AEDPA’s requirement that a petitioner’s claim be adjudicated on the
merits by a state court is not an entitlement to a well-articulated or even
a correct decision by a state court. . . . Accordingly, the postconviction
trial court’s discussion of counsel’s performance–combined with its
express determination that the ineffective-assistance claim as a whole
lacked merit–plainly suffices as an adjudication on the merits under
AEDPA.
Worthington v. Roper, 631 F.3d 487, 496-97 (8th Cir. 2011) (internal quotation
marks and citations omitted). The court also determined that a federal court
reviewing a habeas claim under AEDPA must “look through” the state court opinions
and “apply AEDPA review to the ‘last reasoned decision’ of the state courts.” Id. at
497. A district court should do “so regardless of whether the affirmance was
reasoned as to some issues or was a summary denial of all claims.” Id. The Supreme
Court agrees, stating:
There is no text in the statute requiring a statement of reasons. The
statute refers only to a “decision,” which resulted from an
“adjudication.” As every Court of Appeals to consider the issue has
recognized, determining whether a state court’s decision resulted from
an unreasonable legal or factual conclusion does not require that there
be an opinion from the state court explaining the state court’s reasoning.
Harrington, 131 S. Ct. at 784.
B.

Exhaustion Requirement
As set forth in 28 U.S.C. § 2254(b)(1):
(b)(1)

An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court
shall not be granted unless it appears that–
(A)

the applicant has exhausted the remedies available in
the courts of the State; or
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(B)

(i)
(ii)

there is an absence of available State
corrective process; or
circumstances exist that render such process
ineffective to protect the rights of the
applicant.

28 U.S.C. § 2254(b)(1).
The United States Supreme Court has explained the habeas exhaustion
requirement as follows:
Because the exhaustion doctrine is designed to give the state courts a
full and fair opportunity to resolve federal constitutional claims before
those claims are presented to the federal courts . . . state prisoners must
give the state courts one full opportunity to resolve any constitutional
issues by invoking one complete round of the State’s established
appellate review process.
O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). A state prisoner must therefore
“fairly present” the substance of each federal constitutional claim to the state courts
before seeking federal habeas relief. Id. at 844. In Nebraska, “one complete round”
ordinarily means that each § 2254 claim must have been presented in an appeal to the
Nebraska Court of Appeals, and then in a petition for further review to the Nebraska
Supreme Court if the Court of Appeals rules against the petitioner. See Akins v.
Kenney, 410 F.3d 451, 454-55 (8th Cir. 2005).
Moreover, where “no state court remedy is available for the unexhausted
claim—that is, if resort to the state courts would be futile—then the exhaustion
requirement in § 2254(b) is satisfied, but the failure to exhaust ‘provides an
independent and adequate state-law ground for the conviction and sentence, and thus
prevents federal habeas corpus review of the defaulted claim, unless the petitioner can
demonstrate cause and prejudice for the default.’” Armstrong v. Iowa, 418 F.3d 924,
926 (8th Cir. 2005) (quoting Gray v. Netherland, 518 U.S. 152, 162 (1996)). Stated
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another way, if a claim has not been presented to the Nebraska appellate courts and
is now barred from presentation, the claim is procedurally defaulted, not unexhausted.
Akins, 410 F.3d at 456 n. 1.
Under Nebraska law, “[a]n appellate court will not entertain a successive
motion for postconviction relief unless the motion affirmatively shows on its face that
the basis relied upon for relief was not available at the time the movant filed the prior
motion.” State v. Ortiz, 670 N.W.2d 788, 792 (Neb. 2003). Additionally, “[a] motion
for postconviction relief cannot be used to secure review of issues which were or
could have been litigated on direct appeal.” Hall v. State, 646 N.W.2d 572, 579 (Neb.
2002). In such circumstances, where a Nebraska state court rejects a claim on state
procedural grounds, and issues a “‘plain statement’ that it is rejecting petitioner’s
federal claim on state procedural grounds,” a federal habeas court is precluded from
“reaching the merits of the claim.” Shaddy v. Clarke, 890 F.2d 1016, 1018 (8th Cir.
1989); see also Greer v. Minnesota, 493 F.3d 952, 957 (8th Cir. 2007) (reiterating
that “when a state court declined to address a prisoner’s federal claims because the
prisoner had failed to meet a state procedural requirement,” federal habeas is barred
because “[i]n such instances, the state prisoner forfeits his right to present his federal
claim through a federal habeas corpus petition”) (quotations omitted). However, the
state court procedural decision must “rest[] on independent and adequate state
procedural grounds.” Barnett v. Roper, 541 F.3d 804, 808 (8th Cir. 2008) (quotation
omitted). “A state procedural rule is adequate only if it is a firmly established and
regularly followed state practice.” Id. (quotation omitted).
III. DISCUSSION
A.

False Statements by Aybar Crawford (Claim One)

Thomas argues he was denied due process of law in violation of the Fourteenth
Amendment because the State failed to correct false statements made by Aybar
Crawford. (Filing No. 26 at CM/ECF pp. 11-15.) Thomas argues that Crawford, who
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was facing sentencing on drug charges when he testified at Thomas’s trial, falsely
testified that he expected no leniency in exchange for his testimony. (Id.)
Aybar Crawford pled guilty to possession of a controlled substance in the
Douglas County District Court on May 3, 1994. (Filing No. 10-1 at CM/ECF p. 72.)
The shooting at issue in this case occurred on June 17, 1994, a date more than one
month after Crawford pled guilty to the drug charge. On June 29, 1994, Crawford
made a statement to the police about the shooting. (Filing No. 10-11 at CM/ECF p.
19; Filing No. 12-3 at CM/ECF p. 65.) Crawford was not sentenced on the drug
charge until after Thomas’s trial, approximately one year after he pled guilty to the
charge.
At Thomas’s trial, Crawford generally testified that he witnessed Thomas shoot
at Phillip White and Rafael Petitphait, and that he did not see or hear either man
threaten Thomas prior to the shooting. (Filing No. 10-9 at CM/ECF p. 64.) During
a break in Crawford’s testimony and outside the presence of the jury, Thomas’s trial
counsel informed the court that Prosecutor Donald Schense had advised him that
Crawford was awaiting sentencing on drug charges. (Filing No. 10-10 at CM/ECF
pp. 117-118.) In light of this revelation, the court allowed Thomas’s trial counsel to
cross-examine Crawford about whether he was receiving anything in exchange for his
testimony. The following exchange occurred between Thomas’s trial counsel and
Crawford:
Q. You pled seven or eight month ago; isn’t that true?
A. Yes.
Q. And you haven’t been sentenced yet; isn’t that right?
A. Yes.
Q. And you’re hoping that your testimony here will help you in terms of
getting leniency with respect to the sentence that you will at some point
receive; isn’t that right?
A. This couldn’t possibly give me leniency. I’m on interstate compact.
I’m on probation back in San Diego, California, so anything I do doesn’t
resolve any help for me whatsoever because if I’m violated here, they
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send me back regardless of whatever. You know what I’m saying?
Even if I do get help or don’t, they send me back to California.
(Filing No. 10-11 at CM/ECF pp. 19-20.) On re-direct examination, Prosecutor
Donald Schense asked Crawford, “have you and I ever talked about your case that
you have pending in this courthouse?” (Id. at CM/ECF p. 22.) Crawford responded,
“No, we haven’t.” (Id.) Prosecutor Schense also asked Crawford whether anyone
from the county attorney’s office had made any promises in regard to how he was
going to be treated in relationship to his charge. Crawford answered, “No, you
haven’t.” (Id. at CM/ECF p. 22.)
1.

State Court Findings

In his “new” direct appeal, Thomas argued that Crawford lied when he stated
he was not receiving leniency in exchange for his testimony against Thomas. (Filing
No. 12-3 at CM/ECF pp. 143-144.) The Nebraska Supreme Court adjudicated and
rejected Thomas’s argument on the merits, determining the claim “ha[d] no merit.”
See Thomas, 637 N.W.2d at 655. In reaching its decision, the court refused to
consider a copy of a transcript that included hearings on Crawford’s plea, sentence,
and violation of probation. Id.
Notwithstanding the Nebraska Supreme Court’s rejection of this claim on
direct appeal, the state district court subsequently also considered and rejected the
claim in its order denying post-conviction relief. (See Filing No. 12-14 at CM/ECF
pp. 84-86.) However, the state district court considered the documents the Nebraska
Supreme Court had refused to consider. The record before the state district court
included transcripts from Crawford’s criminal proceedings, and also the deposition
testimony of Prosecutor Donald Schense. The transcripts from Crawford’s criminal
proceedings show that Crawford’s sentencing judge sentenced Crawford to a term of
probation, instead of sentencing him to prison, because of the testimony he provided
against Thomas. (See, e.g., Filing No. 10-1 at CM/ECF p. 90 (“And I’m giving you
your break now for what you did in the murder case. . . . Because I had you down for
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penitentiary time until such time as I found out, and I talked to the authorities about
what you did in fact do and the risk that you put yourself in doing it.”).) In addition,
Prosecutor Donald Schense’s deposition testimony shows that Schense informed
Crawford that if Crawford cooperated, his cooperation “would be made known to
[Crawford’s sentencing] judge.” (Filing No. 12-13 at CM/ECF pp. 27-28.)
Like the Nebraska Supreme Court, the state district court concluded Thomas’s
claim had no merit. It wrote, in relevant part:
Defendant claims the State committed prosecutorial misconduct
by allowing one of their witnesses to provide known false testimony.
Defendant alleges that Aybar Crawford, an eyewitness to the shooting,
lied when he stated that his testimony was not given in exchange for
leniency. He also contends the State knew Crawford’s testimony was
false but did not reveal that to the jury.
It is well established that a state cannot [] knowingly use false
evidence, including false testimony, in order to obtain a conviction.
Napue v. Illinois, 360 U.S. 264, 269 (1959). See also State v. Howard,
182 Neb. 411, 416, 155 N.W.2d 339, 343 (1967) (“It is the knowing use
of false testimony or the permitting of false testimony to stand when the
prosecution knows the same to be false that is condemned”). In a
postconviction proceeding, the defendant has the burden of establishing
the prosecution knowingly used false evidence to secure the conviction.
State v. Lotter, 266 Neb. 245, 267, 664 N.W.2d 892, 911 (2003). See
also State v. Huffman, 186 Neb. 809, 814, 186 N.W.2d 715, 714 (1971).
Here, Defendant has failed to meet this burden.
The Nebraska Supreme Court previously discussed Defendant’s
claim for prosecutorial misconduct. Thomas I, 262 Neb. at 1007, 637
N.W.2d at 655. During trial, Defendant asked Crawford if he had
received anything in exchange for his testimony. Id. Crawford denied
that any promises were made to him by the State. Id. During a break in
the proceedings, the State informed Defendant that Crawford had a
felony conviction. Id. at 1008, 262 N.W.2d at 655. On re-cross,
Defendant questioned Crawford about leniency, and Crawford said he
would receive no benefit from testifying, because he would be returned
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to California for violating probation. Id. The State then asked if anyone
had made any promises to Crawford, and Crawford again denied that
any promises had been made. Id. Defendant argues that prosecutorial
misconduct occurred when the State did not correct Crawford’s denial
of a deal. Id.
In his first postconviction motion, Defendant obtained a copy of
a transcript including hearings on Crawford’s plea, sentence, and
probation violation. Id. The Nebraska Supreme Court noted that these
documents were not on the record for direct appeal and would not be
considered. Id. The Supreme Court then determined that Defendant’s
assignment of error had no merit. Id.
Here, as on direct appeal, Defendant has failed to show the State
knowingly used false testimony. The Nebraska Supreme Court has
explained:
“The existence of an agreement to testify by a witness
under threats or promises of leniency made by the
prosecutor is relevant to the credibility of such witness, and
failure to bring that to the attention of the jury denies the
defendant due process of law. An expectation of leniency
on the part of a witness, absent evidence of any expressed
or implied agreement, need not be revealed to the jury.”
State v. Robinson, 271 Neb. 698, 718, 715 N.W.2d 531, 552 (2006)
(internal citations omitted) (emphasis added). Defendant has not
produced any evidence of a deal between Crawford and the State in
which Crawford would testify in exchange for a promise of leniency. At
most, Defendant alleges Crawford may have had an expectation of
leniency. Even if Defendant proved Crawford had such an expectation—
which he does not—this does not need to be revealed to the jury. The
fact that Crawford used his participation in Defendant’s trial at
Crawford’s own sentencing is beside the point. The relevant inquiry is
whether the State had an express or implied agreement with Crawford
that he would receive leniency in exchange for his testimony. Defendant
has not met his burden of proving the existence of any such agreement.

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I find this ground for relief to be without merit. Defendant has
failed to meet his burden of showing an express or implied agreement
existed between Crawford and the State. There is no proof that the State
knowingly used false testimony in Defendant’s trial, and Defendant’s
request for relief on this issue is denied.
(Filing No. 12-14 at CM/ECF pp. 84-86.)
2.

Clearly Established Federal Law

The relevant United States Supreme Court precedents are Giglio v. United
States, 405 U.S. 150 (1972), and Napue v. Illinois, 360 U.S. 264, 269 (1959). In these
cases, the Supreme Court held that prosecutors may not deceive a court and jurors by
presenting evidence that they know is false, Giglio, 405 U.S. at 153, or allow false
testimony to go uncorrected when it appears, Napue, 360 U.S. at 269. In Giglio, the
Supreme Court held that prosecutors may not permit testimony they know to be false
to stand uncorrected if “‘the false testimony could . . . in any reasonable likelihood
have affected the judgment of the jury.’” 405 U.S. at 154 (quoting Napue, 360 U.S.
at 271). In Giglio, the government’s principal witness testified falsely on crossexamination that he had received no promise of immunity from prosecution. The
prosecutor failed to correct the perjury and, in fact, repeated the falsehood in closing
argument. The Supreme Court reversed the defendant’s conviction because of the
reasonable likelihood that the prosecutor’s knowing use of perjury on an issue
relevant to the witness’s credibility affected the jury’s decision and thus deprived the
defendant of due process. Giglio, 405 U.S. at 154-55.
In Napue, a key witness for the prosecution at the defendant’s murder trial
testified falsely that he had received no promises in exchange for his testimony.
However, the prosecutor had promised to recommend a reduced sentence for the
witness. Despite knowing of the witness’s perjury, the prosecutor failed to correct
it. The Supreme Court reversed the defendant’s conviction because the testimony,
which the prosecutor knew to be false, was material (i.e., it could have affected the
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outcome of the trial). Napue, 360 U.S. at 272. Thus, Napue and Giglio stand for the
proposition that the government may not allow perjured testimony at trial to stand
uncorrected if there is a reasonable chance that the testimony could have affected the
jury’s judgment.
3.

Deference

Thomas argues that the transcripts from Crawford’s criminal proceedings and
Prosecutor Schense’s deposition testimony establish that Crawford falsely testified
that he was receiving no benefit from the State. The court agrees with Thomas that
Schense’s statement to Crawford that he would make his cooperation known to the
sentencing judge does suggest that Crawford was untruthful when he testified, upon
questioning by Schense, (1) that he had never spoken to Schense about his pending
criminal case, and (2) he had not been promised anything in exchange for his
testimony. However, the court finds this claim fails for two reasons.
First, the state district court’s findings of fact and conclusions of law on this
issue are entitled to deference under the statutory standard of review that applies to
factual and legal conclusions reached by the state courts. The state district court
determined that, at best, Thomas had alleged (but not proven) that Crawford had an
“expectation of leniency” when he testified against Thomas. (Filing No. 12-14 at
CM/ECF p. 85.) Citing state law, the court reasoned that an expectation of leniency
need not be revealed to the jury absent evidence of “an express or implied agreement”
between Crawford and the State. (Id.) The court held that Thomas had not shown
there was an express or implied agreement between Crawford and the State, and there
was “no proof that the State knowingly used false evidence.” (Id. at CM/ECF pp. 8586.) Upon careful consideration, the court finds that it cannot be said that this
“ruling . . . was so lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded disagreement.”
Harrington, 131 S.Ct. at 786-787. Indeed, in both Giglio and Napue, the prosecuting
authorities admitted at a post-conviction hearing that a promise of leniency was
17

actually made and not revealed to the jury. See Giglio, 405 U.S. at 152-153; Napue,
360 U.S. at 266-267. See also Mastrian v. McManus, 554 F.2d 813, 823 (8th Cir.
1977) (rejecting habeas corpus petitioner’s contention that a witness’s expectation of
leniency must be revealed to the jury, and stating that it did not read Giglio and
Napue to support a claim that an expectation of leniency must be revealed absent
evidence of “an express or implied promise” of leniency).
Second, even if the court were to make an independent determination of this
claim’s merits, it would determine that Thomas is not entitled to relief. Here, there
is no reasonable likelihood that Crawford’s false testimony could have affected the
judgment of the jury. See Napue, 360 U.S. at 265-72 (holding the knowing use of
perjured testimony by the prosecution, including the failure to correct false testimony,
constitutes a denial of due process only if there is any reasonable likelihood that the
false testimony could have affected the judgment of the jury). The jury convicted
Thomas of second degree murder, first degree assault, and two counts of use of a
firearm to commit a felony. Thomas, himself, testified that he removed a gun from
the trunk of his car and used it to shoot Phillip White and Rafael Petitphait, though
he alleged he shot them in self-defense.
Thomas argues that Crawford’s testimony, in particular, was material to the
question of whether or not Thomas acted in self defense because Crawford testified
that he did not see or hear either White or Petitphait threaten Thomas prior to the
shooting. (Filing No. 26 at CM/ECF p. 6.) However, Crawford’s testimony on this
issue was cumulative, as Rafael Petitphait testified that neither he nor White
threatened Thomas. (See, e.g., Filing No. 10-7 at CM/ECF pp. 106-108; Filing No.
10-8 at CM/ECF p. 1.)
Moreover, Thomas successfully undermined Crawford’s credibility throughout
the trial. Indeed, the trial court even allowed one of Thomas’s witnesses to testify
that Crawford was known in the community as being a “habitual liar.” (Filing No.
10-14 at CM/ECF p. 88.) A significant part of Thomas’s closing argument was
18

devoted to attacking Crawford’s credibility. (See Filing No. 10-19 at CM/ECF pp.
66-69.) Thomas’s trial counsel went as far as to argue that Crawford gathered
information about the shooting from others, and then used it “to get leniency.” (Id.
at CM/ECF p. 67.) Thus, even assuming Crawford’s testimony was false and the
prosecution allowed it to go uncorrected, the court finds that there is no reasonable
likelihood that the prosecution’s failure to correct Crawford’s testimony could have
affected the jury’s judgment. For these reasons, a grant of a writ of habeas corpus is
not warranted on this issue.
B.

False Statements by Roger Tucker (Claim Three)

Thomas argues he was denied due process of law in violation of the Fourteenth
Amendment because the State failed to correct false statements made by the State’s
witness, Roger Tucker. (Filing No. 26 at CM/ECF pp. 17-18.) At trial, Tucker
denied having ever been convicted of a felony. (Filing No. 10-11 at CM/ECF p. 53.)
Thomas argues the State knew, prior to Tucker’s testimony, that Tucker had a felony
conviction because Prosecutor Donald Schense testified in a deposition that he
routinely checked the conviction records of his witnesses. (Filing No. 26 at CM/ECF
p. 17.)
Respondent argues that Thomas procedurally defaulted this claim because he
did not raise it in his “new” direct appeal. (Filing No. 30 at CM/ECF p. 35.) The
court agrees. The Tucker issue relates to a matter that occurred during Thomas’s trial,
and Prosecutor Schense’s deposition was taken prior to Thomas’s “new” direct
appeal. Accordingly, Thomas could have litigated the claim on direct appeal and,
under Nebraska law, he was required to do so. See Hall, 646 N.W.2d at 579 (“A
motion for postconviction relief cannot be used to secure review of issues which were
or could have been litigated on direct appeal.”).

19

Despite Thomas’s failure to raise the claim in his “new” direct appeal, the state
district court considered and rejected the claim in its order denying post-conviction
relief. (See Filing No. 12-14 at CM/ECF pp. 90-91.) It wrote:
Defendant argues the State failed to correct witness Roger
Tucker’s testimony concerning a prior felony conviction. Defendant
contends that Tucker lied when he testified he had no prior felony
convictions. (BOE 1002:15-19). Defendant alleges that Tucker actually
has been convicted of a Class IV felony, to wit: driving on a suspended
license.
As noted in section (11), “[i]t is the knowing use of false
testimony or the permitting of false testimony to stand when the
prosecution knows the same to be false that is condemned.” Howard,
182 Neb. at 416, 155 N.W.2d at 343. That is, false testimony alone does
not violate a defendant’s rights; rather, the State must know the
testimony to be false and use it anyway. Defendant has failed to offer
any evidence that the State knowingly adduced false testimony from
Roger Tucker. Defendant relies instead on unsupported allegations.
Indeed, on the record, it is not apparent that Tucker is lying at all, but
rather is confused. Tucker was 66 years-old at the time of the trial. (BOE
972:7-10). He was asked by defense counsel Davis, on cross
examination, whether he had ever been convicted of a felony. (BOE
1002:15). Tucker asked defense counsel what a felony was. (BOE 1002:
16). Defense counsel told Tucker it was a crime punishable by more than
one year in the state penitentiary. (BOE 1002:17-18). Tucker then
replied he had not been convicted of a felony. (BOE 1002:19). This
exchange can easily be read as Tucker failing to understand the meaning
of “felony,” rather than as a bald-faced lie that discredits his testimony.
Regardless, the record does not support Defendant’s conclusory
allegations that the State knowingly offered false testimony or failed to
correct known false testimony. Moreover, Defendant has offered nothing
in support of this charge. In a postconviction proceeding, the defendant
has the burden of establishing the prosecution knowingly used false
evidence to secure the conviction. Lotter, 266 Neb. at 267, 664 N.W.2d
at 911 (2003). Defendant has failed to meet this burden.

20

(Id.)
The state district court’s findings of fact and conclusions of law on this issue
are entitled to deference under the statutory standard of review that applies to factual
and legal conclusions reached by the state courts. Moreover, this court agrees with
the state district court’s determination that this claim lacks merit. As they were in the
state district court, Thomas’s allegations on this issue are conclusory and unsupported
by any evidence. Accordingly, a grant of a writ of habeas corpus is not warranted on
this issue.
C.

Ineffective Post-Conviction Counsel (Claims Two and Four)

Thomas argues that his post-conviction counsel was ineffective when he failed
to assign the Aybar Crawford and Roger Tucker issues as errors to the Nebraska
Supreme Court after the state district court denied relief on the issues. (Filing No. 26
at CM/ECF pp. 15-16, 18-19.) Thomas is not entitled to habeas relief on his claims
of ineffective assistance of post-conviction counsel, as there is no constitutional right
to an attorney in state post-conviction proceedings. See Coleman v. Thompson, 501
U.S. 722, 752 (1991) (holding a petitioner cannot claim constitutionally ineffective
assistance of counsel in state post-conviction proceedings as there is no constitutional
right to an attorney in state post-conviction proceedings).2
D.

Failure to Give Manslaughter Instruction (Claim Five)

2

Thomas’s claims do not implicate the Supreme Court’s holding in Martinez
v. Ryan, 132 S.Ct. 1309, 1319-20 (2012) (holding that inadequate assistance of
counsel during initial-review collateral proceedings may establish cause for
procedural default of a claim of ineffective assistance at trial where the initial-review
collateral proceeding is the first proceeding in which the prisoner can raise his claim
of ineffective assistance at trial).
21

Thomas claims that the trial court “failed in its duty to properly instruct the
jury” when it did not give a manslaughter instruction. (Filing No. 26 at CM/ECF p.
19). Thomas raised this issue to the Nebraska Supreme Court in his “new” direct
appeal. The Nebraska Supreme Court adjudicated and rejected Thomas’s argument
on the merits. The Nebraska Supreme Court wrote:
Next, Thomas argues that the jury was not given an appropriate
manslaughter instruction. Because the record does not suggest that
Thomas requested a manslaughter instruction, the question is whether
there was any evidence from which a jury could conclude that he
committed manslaughter. “A person commits manslaughter if he kills
another without malice, either upon a sudden quarrel, or causes the death
of another unintentionally while in the commission of an unlawful act.”
Neb.Rev.Stat. § 28-305(1) (Reissue 1995).
Thomas claims that a jury could have found that he killed White
upon a sudden quarrel because both Thomas and another witness
testified that words were exchanged between Thomas and the occupants
of White’s vehicle. A sudden quarrel is a legally recognized and
sufficient provocation which causes a reasonable person to lose normal
self-control. State v. Lyle, 245 Neb. 354, 513 N.W.2d 293 (1994). The
evidence does not support an inference that Thomas shot at White’s car
as the result of a sudden quarrel.
Thomas also claims that a jury could have found that he
unintentionally killed White while in the commission of an assault on
Petitphait. The record includes no evidence from which a jury could
infer that Thomas intended to shoot at Petitphait but not at White. The
assignment of error regarding the manslaughter instruction has no merit.
Thomas, 637 N.W.2d at 654-655.
The Nebraska Supreme Court’s findings of fact and conclusions of law are
entitled to deference under the statutory standard of review that applies to factual and
legal conclusions reached by the state courts. The Nebraska Supreme Court reviewed

22

all of the evidence and determined that there was no evidence from which a jury
could conclude that Thomas committed manslaughter. The court agrees.
Moreover, the Eighth Circuit Court of Appeals has held that the failure to give
a lesser-included-offense instruction in a noncapital case rarely, if ever, presents a
constitutional question. Pitts v. Lockhart, 911 F.2d 109, 112 (8th Cir. 1990). Indeed,
the Supreme Court has never held that the failure to give a lesser-included offense
instruction in a noncapital case was a violation of the Constitution. In Beck v.
Alabama, 447 U.S. 625 (1980), the Supreme Court held that, in a capital case, the
failure to instruct the jury on a lesser included offense violates the Due Process
Clause if there was evidence to support the instruction. The Beck Court expressly
declined to decide whether the Due Process Clause requires the giving of a lesser
included offense instruction in a non-capital case. Id. at 638 n. 14. Because the
Supreme Court has not decided whether there is a constitutional right to a lesserincluded-offense charge in noncapital cases, the Nebraska Supreme Court’s decision
on this matter cannot be said to have been “contrary to . . . clearly established Federal
law, as determined by the Supreme Court of the United States.” 28 U.S.C.
§ 2254(d)(1). A grant of a writ of habeas corpus is not warranted on this issue.
E.

Destruction of Evidence (Claim Six)

Thomas claims that his right to a fair trial was violated when Crime Scene
Investigator David Kofoed tampered with and destroyed evidence material to
Thomas’s self-defense claim. (Filing No. 36 at CM/ECF p. 20.) Thomas’s theory is
that Kofoed, who was involved in evidence collection in Thomas’s case, “removed
and destroyed [a] loose unfired cartridge” from the evidence and that this unfired
cartridge (had it been tested) would have provided evidence that the cartridge was
misfired. (Id. at CM/ECF p. 23.) Thomas claims that this evidence would have
supported his testimony at trial that Phillip White attempted to fire his gun at Thomas.
(Id.)

23

Thomas raised a similar claim to the state district court in a “Motion for New
Trial and DNA Testing” filed on May 21, 2010. (Filing No. 12-15 at CM/ECF pp.
17-24.) The state district court adjudicated and rejected the argument on the merits.
(See state district court’s order denying motion for new trial at id. at CM/ECF pp. 2629.) The Nebraska Supreme Court summarily affirmed the state district court’s
decision on the issue. (Filing No. 12-16 at CM/ECF p. 20.) In denying the claim, the
state district court wrote, in relevant part:
Defendant now argues that David Kofoed, a crime scene
investigator, formerly employed by the Omaha Police Division and
Douglas County Sheriffs Office; destroyed evidence material and
exculpatory to defendant’s case, and seeks a new trial under §29-2101
Neb. Rev. Stat. . . .
Defendant has failed to file this motion in a timely manner, and
it should be denied. Even if defendant had timely filed his motion, it
should still be denied because the defendant makes only conclusions
concerning the activities of Mr. Kofoed. Defendant asserts that because
District Judge Reimier found Kofoed guilty of planting evidence in 2006
and of similar behavior in 2003, Kofoed must have intentionally
destroyed evidence favorable to the defendant during defendant’s trial
in 1995. This conclusion is not supported by evidence in the record of
the trial, and should be denied. . . .
The defendant alternately seeks post conviction relief. . . . [T]he
defendant’s own testimony at trial makes the existence of unfired bullets
irrelevant to his defense of self-defense. Defendant testified:
“When I seen the gun, I ducked. And when I ducked, you
know, with the break, I heard pow. I just came up, and I
started shooting. I shot and then they sped off.”
(T:1870:22-24).
Q. Ok. And so when you got up into that general
area and they pointed the gun, did you see the gunfire?

24

A. No, because when they pointed the gun, I ducked.
And as soon as I ducked and I tried, you know, run, like
this pole, that pole right here (indicating), I was going
towards it, like a step from it, I heard the shot, pow. And it
came from that direction. When I turned around like this
(indicating), the driver still had the gun pointed my way,
and I started shooting. I never seen the firing of the gun,
you know.
(T: 1876:21-1877:5).
It is clear from Mr. Thomas’ own testimony that he responded to
a gun being actually fired at him, and not a “dud”, as he suggests. Why
the two cartridges that were collected as evidence are missing does not
give rise to a claim for post conviction relief[.]
(Filing No. 12-15 at CM/ECF pp. 28-29.)
The state courts’ findings of fact and conclusions of law are entitled to
deference under the statutory standard of review that applies to factual and legal
conclusions reached by the state courts. Moreover, this court agrees with the state
district court’s disposition of this issue. Thomas’s contentions that David Kofoed
tampered with and destroyed evidence in his case are based entirely on speculation
and conjecture. In addition, having reviewed Thomas’s trial testimony, the court
agrees that Thomas’s own testimony makes the existence of unfired bullets irrelevant
to his claim of self-defense. Thomas’s self-defense claim at trial was based on his
testimony that he fired his weapon because he heard a shot fired at him.
(See Thomas’s trial testimony at Filing No. 10-18 at CM/ECF p. 36.) Thomas’s claim
that David Kofoed tampered with and destroyed evidence lacks merit, and Thomas
is not entitled to a writ of habeas corpus on this claim.

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IV. CERTIFICATE OF APPEALABILITY
A petitioner cannot appeal an adverse ruling on his petition for writ of habeas
corpus under § 2254 unless he is granted a certificate of appealability. 28 U.S.C.
§ 2253(c)(1); Fed. R. App. P. 22(b)(1). A certificate of appealability cannot be
granted unless the petitioner “has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). To make such a showing, “[t]he
petitioner must demonstrate that reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong.” Slack v. Daniel, 529
U.S. 473, 484 (2000).
In this case, Thomas has failed to make a substantial showing of the denial of
a constitutional right. The court is not persuaded that the issues raised in the Second
Amended Petition are debatable among reasonable jurists, that a court could resolve
the issues differently, or that the issues deserve further proceedings. Accordingly, the
court will not issue a certificate of appealability in this case.
IT IS THEREFORE ORDERED that:
1.
This matter is dismissed with prejudice, and a separate judgment will be
entered in accordance with this Memorandum and Order.
2.
The court will not issue a certificate of appealability in this matter.
DATED this 16th day of July, 2013.
BY THE COURT:
s/ Joseph F. Bataillon
United States District Judge
*This opinion may contain hyperlinks to other documents or Web sites. The U.S. District Court for the District
of Nebraska does not endorse, recommend, approve, or guarantee any third parties or the services or products they
provide on their Web sites. Likewise, the court has no agreements with any of these third parties or their Web sites. The
court accepts no responsibility for the availability or functionality of any hyperlink. Thus, the fact that a hyperlink ceases
to work or directs the user to some other site does not affect the opinion of the court.

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