Iromuanya v. Houston

Filing 49

MEMORANDUM AND ORDER that Iromuanya's petition for writ of habeas corpus and request for an evidentiary hearing are denied. A judgment in conformity with this Memorandum and Order will issue this date. Ordered by Senior Judge Joseph F. Bataillon. (ADB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
LUCKY I. IROMUANYA
Petitioner,

4:12CV3091

vs.
MEMORANDUM AND ORDER
SCOTT FRAKES
Respondent.

This matter is before the court on Lucky Iromuanya’s petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. Filing No. 1. The action was briefed on the merits
and submitted on the record. In 2004, a jury convicted Iromuanya in the District Court of
Lancaster County, Nebraska of Count I, attempted murder in the second degree, Count
III, murder in the second degree, and Counts II and IV, using a weapon to commit a
felony. See Neb. Rev. Stat. §§ 28-201, 28-304, and 28-1205. Iromuanya’s convictions
were twice affirmed by the Nebraska Supreme Court.1 Iromuanya is currently serving an
aggregate prison term of 70 years to life.2 After an extended and careful review of the
record, the court finds no violation of Lucky Iromuanya’s constitutional rights and thus
denies his Petition for a Writ of Habeas Corpus.
I.

Factual Background

1

See State v. Iromuanya, 719 N.W.2d 263, 296 (Neb. 2006) (“Iromuanya I”) and State v.
Iromuanya, 806 N.W.2d 404 (Neb. 2011) (“Iromuanya II”).
2

The District Court of Lancaster County sentenced Iromuanya to an indeterminate term of 10 to
25 years’ imprisonment for each of Counts II and IV, 25 to 35 years for Count I, and a term of not less
than life imprisonment nor more than life imprisonment for Count III. The Court ordered that Iromuanya
serve all counts consecutively. On direct appeal, the Nebraska Supreme Court affirmed Iromuanya’s
convictions on all counts, but modified the sentence for Count III “to not less than 50 years’ imprisonment
nor more than life imprisonment . . . .” State v. Iromuanya, 719 N.W.2d 263, 296 (Neb. 2006). Counts I
and III were modified from consecutive to concurrent terms, while Counts II and IV remained consecutive
to Counts I and III and to each other. Id.

a. Underlying Crimes
The parties do not dispute the trial court’s factual findings. Facts relevant to
Iromuanya’s claims, as recounted in Iromuanya I & Iromuanya II3, are as follows:
In the early morning hours of April 25, 2004, Lucky Iromuanya and a friend,
Aroun Phaisan, attended a party at the shared residence of Jenna Cooper and Lindsey
Ingram in Lincoln, Nebraska. Iromuanya I, 719 N.W.2d at 273. At some point after
Iromuanya and Phaisan’s arrival, a dispute arose over a missing collection of shot
glasses that belonged to Cooper or Ingram. Id. at 274. After Cooper became aware of
the missing shot glasses, she followed an unidentified individual outside and said she
wanted the shot glasses returned. Id. Iromuanya and Phaisan were standing near the
shot glass collection before it went missing. Id. Apparently Iromuanya and Phaisan were
concerned they would be accused of the theft, so they left the residence. Id. Outside,
Ingram observed Iromuanya and Phaisan leaving the house “very quickly” and she told
the two men no one could leave until the items were returned. Id. Shortly thereafter,
Nolan Jenkins exited the residence. Id. Jenkins grabbed and pushed Iromuanya, and
inquired whether Iromuanya was responsible for the missing glasses. Id. After a brief
scuffle between Jenkins and Iromuanya, several bystanders intervened and separated
the two men. Id. During this intervention, Iromuanya punched Jenkins in the back of the
head. Id.
After the physical altercation, Iromuanya became visibly agitated. Iromuanya I,
719 N.W.2d at 275. Several individuals, including Cooper, approached Iromuanya in an

3

See State v. Iromuanya, 719 N.W.2d 263, 296 (Neb. 2006) (“Iromuanya I”) and State v.
Iromuanya, 806 N.W.2d 404 (Neb. 2011) (“Iromuanya II”).

2

effort to calm him down, but their attempts were unsuccessful. Id. Iromuanya remained
agitated and fixated on Jenkins. Id. Iromuanya eventually calmed down, but only briefly;
after Cooper asked Iromuanya about the shot glasses, Iromuanya became upset again
and denied taking them. Id. Approximately five minutes after the initial altercation,
Jenkins walked back across the yard toward Iromuanya. Iromuanya I, 719 N.W.2d at
275. Jenkins walked at a normal pace and “some witnesses testified that [Jenkins’]
hand was outstretched, as if he intended to shake hands with Iromuanya. Jenkins
testified that [that] was his intent.” Id. One witness “observed that Iromuanya appeared
to become more upset as Jenkins approached . . . .” Id. Once Jenkins came within one
step of Iromuanya, Iromuanya shoved Jenkins in the chest with both hands, knocking
Jenkins backward. Id. Several individuals stepped-in between Jenkins and Iromuanya.
Id. At that point, Iromuanya removed a handgun from his pants pocket, pointed the
weapon at Jenkins, who was approximately five feet away, and fired one round.
Iromuanya I, 719 N.W.2d at 276. “It was later determined that a single bullet entered
Jenkins’ left temple and exited above his left ear. The bullet then pierced Cooper’s neck,
causing her death.” Id.
In 2004, a jury convicted Iromuanya in the District Court of Lancaster County,
Nebraska, of Count I, attempted murder in the second degree, Count III, murder in the
second degree, and Counts II and IV, using a weapon to commit a felony. See Neb.
Rev. Stat. §§ 28-201, -304, and -1205.
b. Procedural History
i. Direct Appeal

3

The same counsel represented Iromuanya at trial and on direct appeal.
Iromuanya II, 806 N.W.2d at 418. On direct appeal, Iromuanya made no claims
regarding ineffective assistance of trial counsel, and he made only one assignment of
error regarding jury instructions. Iromuanya I, 719 N.W.2d at 277. Iromuanya claimed
the trial court erred in giving jury instruction No. 8, which pertained to the element of
intent.4 Id. Iromuanya did not argue that the instruction incorrectly stated the law, nor did
he argue it violated his constitutional rights; instead, Iromuanya argued that the
instruction was prejudicial because it impermissibly allowed the jury to infer his intent
from the result of his actions. Id. at 287. The Nebraska Supreme Court rejected
Iromuanya’s argument and concluded the trial court did not err. Id. at 288. Iromuanya’s
direct appeal concluded when the Supreme Court of the United States denied his
petition for writ of certiorari. Filing No. 12, United States Supreme Court Order Direct
Appeal.
ii. Post-Conviction Appeal
After the conclusion of Iromuanya’s direct appeal, he filed a petition for
postconviction relief. New counsel represented Iromuanya during his postconviction
proceedings. Filing No. 12-12, Order Appointing Counsel Other Than Public Defender.

4

Instruction No. 8 contained the following language:

Intent is an element of the crimes charged against the defendant. In deciding whether the
defendant acted with intent, you should consider his words and acts and all of the surrounding
circumstances.
You may infer, but are not required to infer, that a person intended a reasonably probable result
of his or her act.
Filing No. 12-11, at ECF p.15.

4

The District Court of Lancaster County, Nebraska, denied Iromuanya’s petition for
postconviction relief without an evidentiary hearing. Filing No. 12-12, Transcript
Iromuanya II, at ECF pp.8-32. Iromuanya appealed to the Nebraska Supreme Court.
See Iromuanya II, 806 N.W.2d 404 (Neb. 2011).
On appeal, Iromuanya argued that the district court erred by failing to grant an
evidentiary hearing on all his claims pertaining to ineffective assistance of trial counsel
and appellate counsel.5 Id. at 418. Iromuanya argued that trial counsel “failed to provide
objectively reasonable advice and representation in respect to plea negotiations” and
that he “was not adequately informed of the status and substance of offers made by the
prosecution . . . .” Filing No. 12-9, Brief of Appellant Iromuanya II, at ECF p.33.
Iromuanya concluded that “[b]ut for the ineffectiveness of [his] attorneys, the results of
the proceedings would have been different.” Id. The Nebraska Supreme Court rejected
Iromuanya’s argument. Iromuanya II, 806 N.W.2d at 420. The Court observed that “at
Iromuanya’s sentencing hearing, his trial counsel stated that (1) he had sent a letter to
the prosecution extending Iromuanya’s offer to plead guilty to manslaughter; and (2) if
the prosecutor had accepted the offer, Iromuanya would have pleaded guilty.” Id. The
Court concluded that because Iromuanya “[did] not allege that the prosecutor offered
him a plea agreement[,]” his allegations were “insufficient to overcome the presumption
that his trial counsel acted reasonably.”6 Iromuanya II, 806 N.W.2d at 420.

5

Iromuanya’s placed his constitutionally relevant postconviction claims within sizeable headings.
See Filing No. 12-9, at ECF pp.18, 33, Brief of Appellant Iromuanya II. In relevant part, Iromuanya
alleged the denial of his right to effective assistance of counsel and due process of the law in violation of
the 5th, 6th, and 14th Amendments to the United States Constitution.
6

Under Nebraska law, “[a] court must grant an evidentiary hearing on a postconviction motion
when the motion contains factual allegations which, if proven, constitute an infringement of the movant's

5

Additionally, Iromuanya argued “the [district] court erred in failing to find that trial
counsel was ineffective for failing to (1) properly challenge jury instructions and (2)
object to the court’s response to the jurors’ question during deliberations.”7 Iromuanya
II, 806 N.W.2d at 434. The relevant instructions for Iromuanya’s claims were Jury
Instruction No. 3 and Jury Instruction No. 5. In Iromuanya II, the Nebraska Supreme
Court explained these instructions by stating that,
Jury instruction No. 3 set out the elements for attempted second
degree murder of Jenkins. The instruction informed jurors that they could
find Iromuanya guilty or not guilty and did not have a lesser-included
offense.8
Jury instruction No. 5 set out the elements for the charge of second
degree murder of Cooper. It did have a lesser-included offense of
rights under the Nebraska or federal Constitution.” Iromuanya II, 806 N.W.2d at 419 (citing State v.
McGhee, 787 N.W.2d 700 (Neb. 2010)). “But if a postconviction motion alleges only conclusions of fact or
law—or if the records and files in the case affirmatively show that the movant is entitled to no relief—no
evidentiary hearing is required.” Id.
7

“During the jury’s deliberations, jurors sent this question to the court: ‘Can a “sudden quarrel”
be a consideration when making a decision of not guilty or guilty in the charge of attempted murder in the
2nd degree?’” Iromuanya II, 806 N.W.2d at 434-35. “Defense counsel agreed with the prosecutor that the
jury could not consider a sudden quarrel for attempted second degree murder, and that is how the court
instructed the jury.” Id. at 435.
8

The material elements for Attempted Murder in the Second Degree were put to the jury in
Instruction No. 3 as follows:
1. That the defendant, Lucky Ikenna Iromuanya, intended to commit Murder in the Second
Degree; and
2. That the defendant attempted to commit Murder in the Second Degree by attempting to
cause the death of Nolan Jenkins, intentionally but without premeditation; and
3. That the defendant did so by intentionally engaging in conduct which, under the
circumstances as he believed them to be, constituted a substantial step in a course of
conduct intended to culminate in his commission of the crime of Murder in the Second
Degree; and
4. That the defendant’s conduct strongly corroborated his intent to commit Murder in the
Second Degree; and
5. That the defendant did so on or about April 25, 2004, in Lancaster County, Nebraska.
Filing No. 12-11, Jury Instruction No. 3, at ECF pp.6-7.

6

manslaughter and informed jurors that they could find Iromuanya guilty of
murder in the second degree, or guilty of manslaughter, or not guilty. If the
jury found that the State had failed to prove second degree murder, the
instruction stated that it must acquit Iromuanya of that charge and
consider the crime of manslaughter.9
The manslaughter elements in instruction No. 5 required the State
to prove that Iromuanya killed Cooper without malice upon (1) a sudden
quarrel or (2) unintentionally while in the commission of an unlawful act, to
wit: recklessly causing bodily injury to Jenna Cooper.
Iromuanya II, 806 N.W.2d at 433 (internal quotation marks omitted). Iromuanya claimed
“[t]he critical factual question to be decided [was] whether [he] acted intentionally but by
the provocation of a sudden quarrel.”10 Filing No. 12-9, Brief of Appellant Iromuanya II,
at ECF pp. 22-23. He claimed the jury was disallowed from considering the issue
because “the jury was expressly informed both by Instruction No. 10 and the answer to
the jurors’ question, that provocation and sudden quarrel [could not] be considered
while addressing the intent requirement for second degree murder related offenses.” 11
Filing No. 12-9, Brief of Appellant Iromuanya II, at ECF p. 23.

9

The material elements for Murder in the Second Degree were put to the jury in Instruction No. 5
as follows:
1. That the defendant, on or about April 25, 2004, did kill Jenna Cooper;
2. That the defendant did so in Lancaster County, Nebraska; and
3. That the defendant did so intentionally, but without premeditation.
Filing No. 12-11, at ECF p.10.
10

The gravamen of Iromuanya’s argument was that Instructions No. 3 and No. 5 should have
included a negative element that required the prosecution to prove beyond a reasonable doubt that
sudden quarrel provocation did not precipitate Iromuanya’s intent to kill. See Filing No. 12-9, Brief of
Appellant Iromuanya II, at ECF p.18 (“[t]here [was] no lesser-included offense instruction [in Instruction
No. 3] and the instruction [did] not require the State to prove beyond a reasonable doubt that the
[attempted murder] of Nolan Jenkins was intentional but not intentional by provocation caused by a
sudden quarrel.”).
11

Jury Instruction No. 10 contained the following language:

7

Iromuanya further alleged the instructions relieved the State of its burden to
“prove beyond a reasonable doubt that the death or the attempt to cause the death was
not committed by provocation during the course of a sudden quarrel.” Filing No. 12-9,
Brief of Appellant Iromuanya II, at ECF p.24. Thus, Iromuanya argued, defense
counsel’s failures resulted in “a denial of due process . . . and the right to effective
assistance of counsel.” Filing No. 12-9, Brief of Appellant Iromuanya II, at ECF p. 24.
The Nebraska Supreme Court rejected all of Iromuanya’s arguments. First, the
Court addressed Iromuanya’s argument that counsel failed to challenge the trial court’s
response to the jurors’ inquiry. The Court noted that the trial court “instructed the jurors
that they could not consider a sudden quarrel provocation in deciding Iromuanya’s intent
for attempted second degree murder . . . .” Iromuanya II, 806 N.W.2d at 434. The Court
determined the “response was correct under the governing law at the time of
Iromuanya’s trial.” Id. The Court explained that sudden quarrel provocation was derived
from Neb. Rev. Stat. § 28-305(1) (Reissue 2008), which “provides that ‘[a] person
commits manslaughter if he kills another without malice, either upon a sudden quarrel,

"Sudden quarrel" is a legally recognized and sufficient provocation which causes a reasonable
person to lose normal self control. The phrase "sudden quarrel" does not necessarily mean an exchange
of angry words or an altercation contemporaneous with an unlawful killing and does not require a physical
struggle or other combative corporal contact between the defendant and Nolan Jenkins. In considering
the offense of manslaughter, you should determine whether the defendant acted under the impulse of
sudden passion suddenly aroused which clouded reason and prevented rational action, whether there
existed reasonable and adequate provocation to excite the passion of the defendant and obscure and
disturb his power of reasoning to the extent that he acted rashly and from passion, without due
deliberation and reflection, rather than from judgment, and whether, under all the facts and circumstances
as disclosed by the evidence, a reasonable time had elapsed from the time of provocation to the instant
of the killing for the passion to subside and reason resume control of the mind. You should determine
whether the suspension of reason, if shown to exist, arising from sudden passion, continued from the time
of provocation until the very instant of the act producing death took place.
Filing No. 12-11, at ECF p. 19.

8

or causes the death of another unintentionally while in the commission of an unlawful
act.’” The Court explained the law governing at the time of Iromuanya’s trial:
In State v. Jones, [515 N.W.2d 654, 659 (Neb. 1994) (subsequent history
omitted)], we specifically held that “there is no requirement of an intention
to kill in committing manslaughter. The distinction between second degree
murder and manslaughter upon a sudden quarrel is the presence or
absence of an intention to kill.”
So under Jones, the district court correctly instructed the jurors that
they could not consider a sudden quarrel provocation in deciding whether
Iromuanya was guilty or not guilty of attempted second degree murder for
shooting at Jenkins. It is true that we have recently overruled our decision
in Jones and held that sudden quarrel manslaughter is an intentional
killing. But this decision was issued well after Iromuanya's trial and direct
appeal. The failure to anticipate a change in existing law does not
constitute deficient performance.12
Iromuanya II, 806 N.W.2d at 434-35. Thus, the Court reasoned, “Iromuanya’s trial
counsel was not ineffective for failing to object to the court’s response to the jury.” Id. at
435.
Next, the Court addressed Iromuanya’s argument that counsel failed to challenge
various jury instructions. The Court observed, “Instruction No. 10 informed jurors that
they should consider whether the conflict between Iromuanya and Jenkins was a
sufficient provocation for the charge of manslaughter.” Iromuanya II, 806 N.W.2d at 435.
The Court noted, however, that sudden quarrel provocation was relevant only to the
charge of manslaughter as a lesser-included offense to the charge of second- degree
murder of Cooper. Id. The Court concluded that, “[i]f the jurors had believed that
12

The holding in State v. Jones, 515 N.W.2d 654 (Neb. 1994) was overruled by State v. Ronald
Smith, 806 N.W.2d 383 (Neb. 2011) (holding that sudden quarrel manslaughter is an intentional killing).
Although Ronald Smith was decided before Iromuanya II, retroactive application of the Ronald Smith
holding applies only to cases on, or pending on, direct review. See State v. William Smith, 822 N.W.2d
401 (Neb. 2012) (citing Griffith v. Kentucky, 479 U.S. 314 (1987)) (establishing that “a new rule for the
conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on
direct review or not yet final . . . .”) (emphasis added). This Court notes that Iromuanya’s direct appeal
(Iromuanya I) concluded January 16, 2007. See Filing No. 12-2, US Supreme Court Order Direct Appeal.

9

Iromuanya did not intend to kill Jenkins, the instructions required them to find him not
guilty of attempted second degree murder.”13 Iromuanya II, 806 N.W.2d at 435. The
Court also rejected “Iromuanya’s argument that the instructions relieved the State of its
burden to prove beyond a reasonable doubt that the attempt to cause death was not
committed during a sudden quarrel provocation.” Id. The Court stated, “[d]ue process
requires the prosecution to prove, beyond a reasonable doubt, every fact necessary to
constitute the crime charged.”14 Id. The Court explained that “[h]ere, the instruction for
attempted second degree murder of Jenkins informed the jury that the State had to
prove Iromuanya’s intent to kill beyond a reasonable doubt[]” and that “[t]he absence of
a provocation is not an element of second degree murder . . . .” Id. The Court concluded
Iromuanya’s “[d]efense counsel [was] not ineffective for failing to object to jury
instructions that, when read together and taken as a whole, correctly state[d] the law
and [were] not misleading.” Id.
c. Federal Habeas Corpus Action
Iromuanya timely filed his petition in this action pro se in 2012. Filing No. 1. In
2013, this court appointed counsel to Mr. Iromuanya for the limited purpose of
submitting briefs, Filing No. 33, and Iromuanya filed a brief in support of his petition on

13

This reasoning would have necessarily led the jury to the same result for the charge of seconddegree murder in re Cooper. Had the jury found no intention to kill, then, and only then, would the jury
have been prompted to consider manslaughter as set forth in Instruction No. 5.
14

Although Iromuanya did not allege a Due Process violation by the trial court in his
postconviction brief, the Nebraska Supreme Court appears to, at least implicitly, address the issue as if
he had. As authority, the Court cited cases regarding the constitutional requirement that guilt must be
proven beyond a reasonable doubt. See State v. Putz, 662 N.W.2d 606, 611-12 (Neb. 2003) (addressing
claim of erroneous jury instruction defining “reasonable doubt”) (citing In re Winship, 397 U.S. 358, 364
(1970) (“hold[ing] that the Due Process Clause protects the accused against conviction except upon proof
beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.”).
The court addresses this issue beginning at page 24, below.

10

the merits. Filing No. 39. Respondent filed a brief in response to Iromuanya’s petition,
Filing No. 22, and a reply brief to Iromuanya’s brief in support. Filing No. 44. In 2015,
the court granted respondent’s Motion to Substitute Party and Scott Frakes, acting in his
official capacity as Director of the Nebraska Department of Correctional Institutions, was
named Respondent. Filing No. 48.
The court addresses Iromuanya’s claims below.
II.

Legal Framework
a. Standard of Review
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 one of that Court's
cases despite confronting indistinguishable facts. 529 U.S. at 405-06. A state court
decision involves an “unreasonable application” when it identifies the correct legal rule,
but unreasonably applies it to the facts. Id. at 407. “A state court's application of clearly
established federal law must be objectively unreasonable, not merely incorrect, to
warrant the granting of a writ of habeas corpus.” Arnold v. Dormire, 675 F.3d 1082,
1085 (8th Cir. 2012) (internal citations and quotation marks omitted).
11

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:

12

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 Eighth Circuit 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 (internal citation omitted). 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.
III.

Discussion
Condensed and summarized for clarity, Iromuanya’s claims are as follows: 15
a. Claim One: Ineffective Assistance of Counsel
Iromuanya’s first claim alleges he was denied due process of law and the

effective assistance of counsel in violation of the Sixth and Fourteenth Amendments
because his trial counsel: (1) rejected a plea agreement without first informing Petitioner
15

Iromuanya’s petition for Writ of Habeas Corpus is located in Filing No. 1.

13

of the plea offer; and (2) failed to recognize that the prosecutor had a duty to prove
beyond a reasonable doubt “the absence of a sudden quarrel provocation” regarding
the second degree murder charge and therefore failed to object on that basis. Filing No.
7. Iromuanya asks the court to grant his petition or, in the alternative, grant an
evidentiary hearing.
i. Procedural Defenses
Respondent concedes that Iromuanya’s claim of ineffective assistance of counsel
“does not appear to have been procedurally defaulted.” Filing No. 22, at ECF p. 7. The
court finds that Iromuanya’s claims of ineffective assistance of counsel were fairly
presented to the Nebraska Supreme Court and properly exhausted at the state level
pursuant to 28 U.S.C. § 2254(b)(1)(A), and thus are ripe for this court’s review.16
ii. Principles of Law
Claims of ineffective assistance of counsel are reviewed under the two-pronged
standard outlined in Strickland v. Washington, 466 U.S. 668 (1984). Strickland requires
that the petitioner demonstrate both that his counsel's performance was deficient, and
that such deficient performance prejudiced the petitioner. Id. at 687; see also Bryson v.

16

The court notes that, in Iromuanya II, the Nebraska Supreme Court viewed the “core issue” as
“whether the [district] court erred in dismissing Iromuanya's postconviction motion without an evidentiary
hearing.” Iromuanya II, 806 N.W.2d at 419. The Court’s posture may have been due to the disorganized
construction of Iromuanya’s brief in Iromuanya II. Cf. Filing No. 12-9, Brief of Appellant Iromuanya II, at
ECF p.i (where the “Table of Contents” contained a heading that referenced only the district court’s denial
of an evidentiary hearing) with Filing No. 12-9, Brief of Appellant Iromuanya II, at ECF p. 2 (where the
“Assignments of Error” contained an ineffective assistance of counsel claim pursuant to Strickland v.
Washington, supra, as its own assignment of error). Nevertheless, this court is satisfied that the claims
were fairly presented to, see Dye v. Hofbauer, 546 U.S. 1, 3-4 (2005) (“Outlining specific allegations of
prosecutorial misconduct, the text of the brief under this argument heading cites the Fifth and Fourteenth
Amendments to the Constitution of the United States.”), and adjudicated by, the Nebraska Supreme Court
in Iromuanya II.

14

United States, 268 F.3d 560, 561 (8th Cir. 2001); Williamson v. Jones, 936 F.2d 1000,
1004 (8th Cir. 1991).
The first prong of the Strickland test requires the petitioner to demonstrate that
his or her attorney failed to provide reasonably effective assistance. Strickland, 466 U.S.
at 687. In conducting such a review, the courts “indulge a strong presumption that
counsel's conduct falls within the wide range of reasonable professional assistance[.]”
Id. at 689. When addressing a claim of ineffectiveness, a court must assess the
“reasonableness of counsel’s challenged conduct on the facts of the particular case,
viewed as of the time of counsel’s conduct.” Id. at 691.
The second prong requires the petitioner to demonstrate “a reasonable
probability that but for counsel's unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id. at 694; see also Hubbeling v. United States,
288 F.3d 363, 365 (8th Cir. 2002). “When a defendant challenges a conviction, the
question is whether there is a reasonable probability that, absent the errors, the
factfinder would have had a reasonable doubt respecting guilt.” Id. at 695. A court need
not address the reasonableness of the attorney's skills and diligence if the movant
cannot prove prejudice under the second prong of this test. See United States v. Apfel,
97 F.3d 1074, 1076 (8th Cir. 1996).
In the context of section 2254 habeas corpus petitions, ineffective assistance of
counsel claims are afforded “a substantially higher threshold” of deference that does not
focus on “whether a federal court believes the state court’s determination [under
Strickland] was incorrect” but whether the “determination was unreasonable[.]” Knowles
15

v. Mirzayance, 556 U.S. 111, 123 (2009). Additionally, “because the Strickland standard
is a general standard[,]” state court decisions are given “doubly deferential judicial
review[.]” Id.
iii. Analysis
In order for this court to grant Iromuanya’s petition, it must find that the Nebraska
Supreme Court’s decisions (1) were contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court of
the United States; or (2) were based on an unreasonable determination of the facts in
light of the evidence presented in the state court proceedings. 28 U.S.C. § 2254(d)(1)(2) (1996).
1. Plea Negotiations
Since Iromuanya argues the Nebraska Supreme Court’s decision regarding
counsel’s assistance in plea negotiations resulted from an unreasonable factual
determination, See Filing No. 39, at ECF p. 17, the court will look to section 2254(d)(2)
as the controlling statutory provision. As a preliminary matter, however, Iromuanya must
rebut, by clear and convincing evidence, the Nebraska Supreme Court’s factual
determinations. See Cochran v. Dormire, 701 F.3d 865, 869 (8th Cir. 2012) (citing 28
U.S.C. § 2254(e)(1)).
First, Iromuanya challenges the Nebraska Supreme Court’s factual determination
that he did not allege in his postconviction brief that the prosecutor offered a plea
agreement. Filing No. 39, at ECF pp. 15-17. Iromuanya thus argues that he did “allege a
prosecution offer in his post-conviction motion[.]” Filing No. 39, at ECF p. 17. As
evidence of this claim, Iromuanya quotes an excerpt from his postconviction brief, which
16

states, “[Iromuanya] was not adequately informed of the status and substance of offers
made by the prosecution[.]” Filing No. 39, Brief in Support of Petition, at ECF pp. 15-16
(quoting Filing No. 12-9, Brief of Appellant Iromuanya II, at ECF p. 33). Although the
court concedes that reasonable minds could differ interpreting whether the statement
alleges, albeit implicitly, that the prosecution had in fact made a plea offer, “even if
reasonable minds reviewing the record might disagree about the finding in question, on
habeas review that does not suffice to supersede the trial court's . . . determination.”
Wood v. Allen, 558 U.S. 290, 301 (2010) (internal citations omitted). Even assuming,
arguendo, that this court believed the Nebraska Supreme Court incorrectly interpreted
Iromuanya’s allegation, “a state court factual determination is not unreasonable merely
because the federal habeas court would have reached a different conclusion in the first
instance.” Cochran v. Dormire, 701 F.3d 865, 869 (8th Cir. 2012) (quoting Wood v.
Allen, 558 U.S. 290 (2010)). The court finds that Iromuanya has not rebutted the
Nebraska Supreme Court’s factual determination by clear and convincing evidence.
Next, Iromuanya argues that the Nebraska Supreme Court’s decision—that
defense counsel was not deficient during plea negotiations—was based on an
unreasonable determination of the facts. Filing No. 39, at ECF pp. 15-17. As stated in its
opinion, the Nebraska Supreme Court’s decision was based on two factors: (1)
Iromuanya’s failure to allege a prosecution plea offer and (2) defense counsel’s
statement at Iromuanya’s sentencing hearing. Iromuanya II, 806 N.W.2d at 809. As to
the first factor, Iromuanya argues that his allegation, “if true, would justify a finding of
deficient performance[,]” thus satisfying the first prong under Strickland. Filing No. 39, at
ECF p. 16. As for the second prong, regarding prejudice, Iromuanya argues that “had
17

[he] received objectively reasonable representation, [he] would have pursued and plead
[sic] to a lesser offense(s) than the offenses to which he was charged and convicted.”
Id. As to the second factor, Iromuanya argues that it is unreasonable because it
requires two additional assumptions: Iromuanya made the only offer, and the
prosecution made no counter-offer. Filing No. 39, at ECF p. 16. Iromuanya speculates
that “[i]t is completely possible that, while the prosecution rejected Iromuanya’s offer,
[the prosecution] made a counter-offer that was never communicated to Iromuanya.”
Filing No. 39, at ECF p. 17. In its opinion, the Nebraska Supreme Court concluded,
“Under this record, Iromuanya's allegations are insufficient to overcome the presumption
that his trial counsel acted reasonably.” Iromuanya II, 806 N.W.2d at 809. This court
agrees with the Nebraska Supreme Court. Iromuanya has established neither that
“counsel’s representation fell below an objective standard of reasonableness[,]”
Knowles v. Mirzayance, 556 U.S. 111, 124 (2009), nor “that there [was] a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland v. Washington, 466 U.S. 668, 694 (1984). As
noted above, the Nebraska Supreme Court’s factual determination regarding its
interpretation of Iromuanya’s allegation was reasonable. Furthermore, the record
supports defense counsel’s statement during the sentencing hearing, and this court
cannot say the Nebraska Supreme Court’s decision was unreasonable for having relied
upon it. This court concludes that the Nebraska Supreme Court’s decision—that
defense counsel’s performance during plea negotiations was not deficient—was based
on a reasonable determination of the facts in light of the evidence presented in the State
court proceeding. See 28 U.S.C. § 2254(d)(2).
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The court also denies Iromuanya’s request for an evidentiary hearing. Iromuanya
alleges in his petition that, subsequent to his trial and conviction, defense counsel
informed his mother of a prosecution offer. Filing No. 1, at ECF p. 6. However,
Iromuanya fails to identify with any sort of particularity when after his trial he learned of
this alleged offer. To warrant an evidentiary hearing the claim must rely on “a factual
predicate that could not have been previously discovered through the exercise of due
diligence[.]” 28 U.S.C. § 2254(e)(2)(A)(ii). Iromuanya’s claim fails to meet this threshold.
Given the foregoing, Iromuanya has failed to rebut the Nebraska Supreme
Court’s factual determination and establish that the Nebraska Supreme Court’s decision
was based on a unreasonable determination of the facts in light of the evidence
adduced during the state court proceedings.
2. Jury Instructions
Iromuanya’s second ineffective assistance of counsel claim concerns 28 U.S.C. §
2254(d)(1). Iromuanya argues that defense counsel was ineffective because counsel
“failed to recognize that the prosecutor had a duty to prove beyond a reasonable doubt
the absence of a sudden quarrel provocation regarding the second degree murder
charge and therefore failed to object on that basis.” See Filing No. 7, at ECF p. 1.
Pursuant to 28 U.S.C. § 2254(d)(1), this court may grant Iromuanya’s petition only if it
concludes that the Nebraska Supreme 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.”
Iromuanya’s focuses his argument primarily on the “wildly fluctuating” changes to
Nebraska’s second-degree murder and manslaughter laws. Filing No. 39, at ECF p. 29.
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Because the “law on second degree murder and sudden quarrel manslaughter was in
flux for decades[,]” Iromuanya argues, “it was indeed deficient performance for
Iromuanya’s attorney not to insist that ‘sudden quarrel’ be a consideration on the
second degree murder/attempted second degree murder charges.” Id. He further
argues, “federal law was such that Counsel should have requested instructions making
it clear that the state bore the burden of proving absence of sudden quarrel.”17 Id.
On postconviction review, the Nebraska Supreme Court found that defense
counsel’s performance was not deficient. See Iromuanya II, 806 N.W.2d at 434-35. The
Nebraska Supreme Court observed that “[t]he absence of a provocation [was] not an
element of second degree murder [at the time of the trial], and no element of the charge
[was] presumed.” Id. at 435. Thus, the Nebraska Supreme Court concluded, defense
counsel’s “failure to anticipate a change in existing law d[id] not constitute deficient
performance.” Id. at 435. This court agrees with the Nebraska Supreme Court’s
decision, and thus concludes it was neither contrary to, nor an unreasonable application
of, clearly established federal law, as determined by the Supreme Court of the United
States.
In Strickland v. Washington, the United States Supreme Court stated, “[i]in any
case presenting an ineffectiveness claim, the performance inquiry must be whether
counsel’s assistance was reasonable considering all the circumstances.” 466 U.S. at
688. Under Nebraska law, “absence of a provocation is not an element of second
degree murder[.]” Iromuanya II, 806 N.W.2d at 435. Thus, it would have been

17

The court notes the issue concerning burden of proof is addressed in Iromuanya’s Claim Two.
See Filing No. 7, at ECF p. 2.

20

erroneous, as a matter of Nebraska law, to include Iromuanya’s requested negative
element to the instruction for second-degree murder.18 As such, the court cannot
conclude defense counsel’s performance “fell below an objective standard of
reasonableness.” Strickland, 466 U.S. at 688. At the time of Iromuanya’s trial,
notwithstanding the subsequent changes to Nebraska’s second-degree murder and
manslaughter laws, a jury could not consider a sudden quarrel provocation in deciding
intent for second-degree murder. Id. The court rejects the notion that counsel should
have foreseen a change in the existing law at the time of trial. The Eight Circuit has
addressed the issue and determined that counsel is not deficient for failing to anticipate
a change in existing law. See Carter v. Hopkins, 92 F.3d 666, 670 (8th Cir.1996)
(“[C]ounsel need not ‘anticipate a change in existing law’ to render constitutionally
effective assistance of counsel.”), cert. denied, 520 U.S. 1107 (1997); see also Ruff v.
Armontrout, 77 F.3d 265 (8th Cir.1996) (failure to anticipate change in existing law does
not amount to ineffective assistance of counsel), cert. denied, 519 U.S. 889; Johnson v.
Armontrout, 923 F.2d 107 (8th Cir.1991), cert. denied 502 U.S. 831, 112 S.Ct. 106, 116
L.Ed.2d 75; Horne v. Trickey, 895 F.2d 497 (8th Cir.1990). “[T]he proper standard for
attorney performance is that of reasonably effective assistance[,]” Strickland, 466 U.S.
at 687, and this court believes Iromuanya’s counsel met that standard. Because
Iromuanya’s counsel was not deficient, Iromuanya cannot establish that there is a
reasonable probability the outcome would have been different. See Strickland, 466 U.S.

18

Iromuanya also argues, “federal law was such that Counsel should have requested instructions
making it clear that the state bore the burden of proving absence of sudden quarrel. [In re] Winship, [397
U.S. 358 (1970)], Mullaney [v. Wilbur, 421 U.S. 684 (1965)], and Apprendi [v. New Jersey, 530 U.S. 466
(2002)], all demand such an instruction, and each of those cases was decided well before [his] trial.”
Filing No. 39, at ECF p. 29. The court will address this issue beginning at page 22, below.

21

at 694 (“The defendant must show that there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have been
different.”).
Given the foregoing, Iromuanya has failed to establish that the Nebraska
Supreme 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).
b. Claims Two and Three: Due Process Violations
Iromuanya’s second claim is that he was denied due process of law in violation of
the Fourteenth Amendment because the trial court: (1) omitted a “lesser included
offense instruction for attempted manslaughter”; (2) failed to instruct the jury that the
prosecutor must prove beyond a reasonable doubt “the absence of a sudden quarrel
provocation” regarding the charges of attempted second degree murder and second
degree murder; and (3) did not properly instruct the jury on the distinction between
“intent to kill” and “intent to kill resulting from a sudden quarrel.” Iromuanya’s third claim
alleges that he was denied due process of law in violation of the Fourteenth
Amendment because the Nebraska Supreme Court upheld the trial court’s errors, as set
forth directly above in Claim two, parts two and three. Based on these alleged errors,
Iromuanya seeks habeas relief.
i. Procedural Defenses
The State argues that Claims two and three both have been procedurally
defaulted. Filing No. 22, at ECF p. 6. To further this argument, the State asserts that
Iromuanya’s due process claims were made only “in the context of the [sic] Iromuanya’s
22

Sixth Amendment right to effective assistance of counsel or as matters of state law, not
as violations of the constitutional right to due process.” Filing No. 22, at ECF p. 6. On
the other hand, Iromuanya argues these claims are not procedurally defaulted because
they were both fairly presented to, and addressed by, the Nebraska Supreme Court.
Filing No. 39, at ECF pp. 20-21. After carefully reviewing the record, the court finds that
Iromuanya’s Claims two and three are either procedurally defaulted or not proper for
this court’s review.
ii. Principles of Law
“Ordinarily, a federal court reviewing a state conviction in a 28 U.S.C. § 2254
proceeding may consider only those claims which the petitioner has presented to the
state court in accordance with state procedural rules.” Arnold v. Dormire, 675 F.3d
1082, 1086-87 (8th Cir. 2012) (internal citations and quotations marks omitted). “In
order to fairly present a federal claim to the state courts, the petitioner must have
referred to ‘a specific federal constitutional right, a particular constitutional provision, a
federal constitutional case, or a state case raising a pertinent federal constitutional issue
in a claim before the state courts.’” McCall v. Benson, 114 F.3d 754, 757 (8th Cir. 1997)
(quoting Myre v. State of Iowa, 53 F.3d 199, 200 (8th Cir. 1995)). “If a petitioner has not
presented his habeas corpus claim to the state court, the claim is generally defaulted.”
Carney v. Fabian, 487 F.3d 1094, 1096 (8th Cir. 2007) (citing Barrett v. Acevedo, 169
F.3d 1155, 1161 (8th Cir. 1999) (en banc)). “Resolving whether a petitioner has fairly
presented his claim to the state courts, thus permitting federal review of the matter, is
an intrinsically federal issue that must be determined by the federal courts.” Wyldes v.
Hundley, 69 F.3d 247, 251 (8th Cir. 1995). “Because exhaustion functions as a federal
23

court gatekeeper, the federal, not the state, courts decide when the state process has
been exhausted or should be deemed ineffective because of delay.” Id. (internal citation
and quotations marks omitted).
The United States Supreme Court “ha[s] stated many times that ‘federal habeas
corpus relief does not lie for errors of state law.’” Estelle v. McGuire, 502 U.S. 62, 67
(1991) (citing Lewis v. Jeffers, 497 U.S. 764, 780 (1990); Pulley v. Harris, 465 U.S. 37,
41 (1984)). “[I]t is not the province of a federal habeas court to reexamine state-court
determinations on state-law questions . . . . [A] federal court is limited to deciding
whether a conviction violated the Constitution, laws, or treaties of the United States.”
Estelle, 502 U.S. at 67-68; see Arnold, 675 F.3d at 1086 (“We do not second-guess the
decision of a Missouri state court on Missouri law.”).
iii. Analysis
1. Claims Two and Three
As noted above, the court finds that Iromuanya’s Claims two and three are either
procedurally defaulted or not proper for this court’s review. Furthermore, the court finds
that even if the claims had been properly raised and addressed, they are nevertheless
without merit. As such, the court also will address the claims on the merits.
Claim two, part one, concerns the trial court’s failure to instruct the jury on the
lesser-included offense of attempted manslaughter. However, Iromuanya did not raise
this claim either in his direct appeal brief or in his motion for postconviction relief. In fact,
in his direct appeal brief, Iromuanya conceded “[a]ttempted manslaughter does not
currently exist in Nebraska.” Filing No. 12-6, at ECF p. 39 (citing Nebraska caselaw).
Even assuming, arguendo, that the trial court failed to instruct the jury on the lesser24

included offense of attempted manslaughter, the United States Supreme Court “has
never held that there is a constitutional requirement that lesser-included offense
instructions be given in noncapital cases.” Carney v. Fabian, 487 F.3d 1094, 1097 (8th
Cir.2007). As such, neither the trial court nor the Nebraska Supreme Court denied
Iromuanya due process of the law. Claim one, part one, is procedurally defaulted or
without merit, or both.
Claim two, parts two and three, and Claim three, entirely, concern the trial court’s
failure to instruct the jury and the Nebraska Supreme Court’s subsequent affirmance.
Iromuanya argues the trial court failed to instruct the jury (1) about the prosecution’s
burden to prove beyond a reasonable doubt the absence of sudden quarrel provocation
and (2) about the distinction between “intent to kill” and “intent to kill resulting from a
sudden quarrel provocation.” Iromuanya raised neither claim in his brief on direct
appeal. The court finds that Claim two, part three, and Claim three, part two, were
neither presented to, nor addressed by, the Nebraska Supreme Court. Accordingly,
those claims are procedurally defaulted. Iromuanya argues the remaining claims—
Claim two, part two, and Claim three, part one—were fairly presented to, and addressed
by, the Nebraska Supreme Court on postconviction review.
Iromuanya argues the due process claim was fairly presented to the Nebraska
Supreme Court by his referencing a denial of due process within the broader context of
his ineffective assistance of counsel claim. Filing No. 22, at ECF p. 20. In his
postconviction brief, Iromuanya argued the failure to instruct the jury regarding absence
of sudden quarrel provocation relieved the State of its burden to prove that negative
element. Filing No. 12-9, at ECF pp. 23-24. Therefore, Iromuanya concluded, defense
25

counsel’s failure to object on that basis resulted in denials of due process and effective
assistance of counsel. Id. As further evidence that he fairly presented the due process
claim, Iromuanya argues the Nebraska Supreme Court addressed the issue of due
process in its opinion, which states,
We reject Iromuanya's argument that the instructions relieved the State of
its burden to prove beyond a reasonable doubt that the attempt to cause
death was not committed during a sudden quarrel provocation. Due
process requires the prosecution to prove, beyond a reasonable doubt,
every fact necessary to constitute the crime charged. Here, the instruction
for attempted second degree murder of Jenkins informed the jury that the
State had to prove Iromuanya's intent to kill beyond a reasonable doubt.
The absence of a provocation is not an element of second degree murder,
and no element of the charge is presumed. If the jurors had believed that
Iromuanya did not intend to kill Jenkins, the instructions required them to
find him not guilty of attempted second degree murder.
Filing No. 22, at ECF p. 21 (citing Iromuanya II, 806 N.W.2d at 435).
It is true the Nebraska Supreme Court mentions due process in its Iromuanya II
opinion; however, the Nebraska Supreme Court addresses due process only as it
relates to Iromuanya’s ineffective assistance of counsel claim. It is clear, from both
Iromuanya’s postconviction brief and the Nebraska Supreme Court’s opinion in
Iromuanya II, that all claims funneled through a Sixth Amendment filter. Iromuanya
argued the absence of a sudden quarrel provocation ought to have been included in the
instructions as a negative element of the second-degree murder charges. The
gravamen of his argument, however, was not that the trial court erred by refusing its
inclusion, which was correct under Nebraska law, but rather that defense counsel erred
by not recognizing the supposed necessity of its inclusion and thus failed to object on
those grounds. Even assuming Iromuanya had claimed trial court error, the error would
be one of state law and not a violation of the federal Constitution. Had his conviction or
26

direct appeal occurred after the decisions in State v. Smith, 282 Neb. 720, 806 N.W.2d
383 (2011) or State v. [William] Smith, 284 Neb.636, 822 N.W.2d 401(2012) the trial
court’s jury instructions would have required the procedure he asserts herein.
Manslaughter on a sudden quarrel is not a lesser included of second degree murder
and does not require a sequential decision. The Nebraska Supreme Court did not hold
this change in the law either constitutional or retroactive. See [William] Smith supra.
Unfortunately for Mr. Iromuanya, the inclusion of elements to a second-degree murder
instruction is an issue of state, not federal, law. Accordingly, “it is not the province of a
federal habeas court to reexamine state-court determinations on state-law questions.
Estelle, 502 U.S. at 67-68 (1991); see Arnold, 675 F.3d at 1086 (“We do not secondguess the decision of a Missouri state court on Missouri law.”).The Writ of Habeas
Corpus was designed to liberate the unlawfully imprisoned. The court finds no such
unlawful imprisonment in Iromuanya’s case.
IT IS ORDERED that Iromuanya’s petition for writ of habeas corpus and request
for an evidentiary hearing are denied. A judgment in conformity with this Memorandum
and Order will issue this date.

DATED this 31st day of March, 2016
BY THE COURT:
s/ Joseph F. Bataillon
Senior United States District Judge

27