Robinson v. Sabatka-Rine

Filing 54

MEMORANDUM AND ORDER - THEREFORE, IT IS ORDERED THAT: Plaintiff's objections, Filing No. 52 , are overruled. Plaintiff's motion for an evidentiary hearing, Filing No. 45 , is denied. The order of the magistrate judge, Filing No. 51 , is adopted in its entirety. Ordered by Senior Judge Joseph F. Bataillon. (TCL )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
EDWARD ROBINSON, JR.,
Plaintiff,

8:13CV197

v.
MEMORANDUM AND ORDER
DIANE SABATKA-RINE, Warden of
Nebraska State Penitentiary;
Defendant.

This matter is before the Court on petitioner’s motion for an evidentiary hearing.
Filing No. 45, and on petitioner’s objections, Filing No. 52, to the magistrate’s order,
Filing No. 51.

Petitioner filed this case seeking habeas corpus relief in this court,

arguing new evidence shows he is innocent of first degree murder. The magistrate
judge determined that petitioner was not entitled to an evidentiary hearing. Petitioner
objected to each finding of the magistrate judge. This Court will review these findings
de novo. See 28 U.S.C. § 636.
In 2004 petitioner was convicted on first degree murder and use of a firearm to
commit a felony in Nebraska state court.

During trial, a primary witness, Michael

Whitlock testified regarding phone calls he had with Robinson on the day of the murder.
Robinson was quite upset about the victim’s disrespectful comments made to
Robinsons’ girlfriend.

The jury convicted Robinson of first degree murder, and the

Supreme Court affirmed, based in part on Whitlock’s testimony. State v. Robinson, 724
N.W.2d 35, 74-75 (Neb. 2006) (finding the murder deliberate and with premeditated
malice).

The new evidence is an August 8, 2014, affidavit from Whitlock, which Robinson
received in August 2014. Filing No. 36-1 - Whitlock Aff. Whitlock’s handwritten affidavit
provides:
I Michael Whitlock am writing this affidavit to let the state and anybody
else it may concern, that the statements about this case that the statement
that I made was not wat [sic] I actully [sic] said, the state took my words
and turned them around, I never said that Eddie Robinson did what he
was accused of. Yes he did call my phone the nite [sic] of the incident,
yes I did talk to him, but he never said that he was going to hurt
somebody, he jus [sic] wanted to talk it out. During the time of the trial, I
was under arrest of the Federal Goverment [sic], and was told that if I said
wat [sic] they wanted me to say that I may get a time cut on my sentence,
at that time the Feds said I was looking at 24yrs, which was not true
because I ended up pleading out to 12yrs 7 months, but I never got a time
reduction [sic], I did my full time, the prosetor [sic] on the case never
contacted me or my family and like I said I never got a time cut I did all my
time. For the record, Eddie Robinson never told me on the phone that he
was going to kill Herb Faint, he jus [sic] said that he jus [sic] wanted to talk
to him.
Filing No. 36-1 - Whitlock Aff. Robinson contends this affidavit only supports a
finding of manslaughter.
Under the Antiterrorism and Effective Death Penalty Act (AEDPA), “a petitioner
seeking an evidentiary hearing must show diligence and, in addition, establish [the
petitioner’s] actual innocence by clear and convincing evidence.” McQuiggin v. Perkins,
133 S. Ct. 1924, 1934 (2013) (citing 28 U.S.C. § 2254(e)(2)(A)(ii), (B)). Specifically, 28
U.S.C. § 2254 sets forth the following requirements:
If the applicant has failed to develop the factual basis of a claim in State court
proceedings, the court shall not hold an evidentiary hearing on the claim unless
the applicant shows that—
(A) the claim relies on-(i) a new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously
unavailable; or
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(ii) a factual predicate that could not have been previously
discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear
and convincing evidence that but for constitutional error, no reasonable
factfinder would have found the applicant guilty of the underlying offense.
28 U.S.C. § 2254(e)(2).
“Although state prisoners may sometimes submit new evidence in federal court,
AEDPA’s statutory scheme is designed to strongly discourage them from doing so.”
Cullen v. Pinholster, 131 S. Ct. 1388, 1401 (2011); see also Cole v. Roper, 623 F.3d
1183, 1192 (8th Cir. 2010) (“AEDPA dictates that an evidentiary hearing may only be
held in extremely limited circumstances when the factual basis for a claim was not
developed in state court.”). Failure to develop means “there is lack of diligence, or
some greater fault, attributable to the prisoner or the prisoner’s counsel.” Williams v.
Taylor, 529 U.S. 420, 432 (2000).

“[T]he decision to grant . . . a [28 U.S.C. §

2254(e)(2)] hearing rests in the discretion of the district court.” Williams v. Norris, 576
F.3d 850, 860 (8th Cir. 2009) (quoting Schriro v. Landrigan, 550 U.S. 465, 468 (2007)).
The magistrate judge found that the:
AEDPA bars an evidentiary hearing unless Robinson can satisfy both §
2254(e)(2)(A) and (B). Here, the requirement under 28 U.S.C. § 2254(e)(2)(A)(ii)
is satisfied. Robinson could not have discovered the affidavit considering
Whitlock did not come forth with the affidavit until ten years after his trial
testimony. The court’s inquiry thus centers on 28 U.S.C. § 2254(e)(2)(B), that is,
whether “by clear and convincing evidence that but for constitutional error, no
reasonable factfinder would have found the applicant guilty of the underlying
offense” in light of the new evidence. The court finds Robinson has not met this
high standard and therefore is not entitled to an evidentiary hearing.
Filing No. 51, at 5.

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The magistrate judge reviewed the evidence at trial as well as the new affidavit.
The magistrate judge concluded that the new affidavit did not recant any of the
testimony given by Whitlock in the first trial, and in fact, it supported most of the
testimony in that case.

Further, the Nebraska Supreme Court determined that

“Whitlock’s testimony also indicates that the defendant was angry with the victim and
had been searching for the victim, suggesting both a motive and a deliberate intent to
confront the victim and perhaps to kill him.” Robinson, 724 N.W.2d at 74. In addition,
the magistrate judge found:
Second, Whitlock provided his problematic affidavit ten years after his trial
testimony. Timing alone makes the affidavit suspect. See McQuiggin,
133 S. Ct. at 1935 (“[A] court may consider how the timing of the
submission and the likely credibility of [a petitioner’s] affiants bear on the
probable reliability of . . . evidence [of actual innocence].”) (second and
third alterations in original) (quoting Schlup v. Delo, 513 U.S. 298, 332
(1995); Herrera v. Collins, 506 U.S. 390, 417-19 (1993) (indicating
affidavits in general, and especially affidavits coming eight years after a
petitioner’s trial, are suspect). Whitlock did not explain why he waited ten
years to come forth with the affidavit.

Filing No. 51, at 6-7. Next, the magistrate judge noted that while Robinson claims his
initial testimony was given in hopes of a deal with a federal prosecutor, this testimony
conflicted with his trial testimony regarding the unlikely downward departure for his
testimony. Further, there is no evidence of any such deal. Part of Whitlock’s motivation
now, found the magistrate, appears to be his dissatisfaction and displeasure with his
federal sentence. Finally, stated the magistrate judge, it is not the court’s prerogative in
a federal habeas case to re-determine credibility. Perry v. Kemna, 356 F.3d 880, 885
(8th Cir. 2004).

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The petitioner objects to each of these findings. However, after careful review,
the Court agrees with all the findings and conclusions of the magistrate judge. The
Court finds the magistrate judge is correct in his analysis of the facts and the law. The
new affidavit does not show Robinson was guilty of anything but first degree murder.
The affidavit does not recant Whitlock’s testimony. The Court is not permitted to redetermine Whitlock’s credibility in this case. There is clearly additional evidence that
supports a finding of deliberate premeditation in addition to Whitlock’s disputed
testimony. For these reasons, the Court will adopt the magistrate judge’s order in its
entirety.
THEREFORE, IT IS ORDERED THAT:
1. Plaintiff’s objections, Filing No. 52, are overruled;
2. Plaintiff’s motion for an evidentiary hearing, Filing No. 45, is denied;
3. The order of the magistrate judge, Filing No. 51, is adopted in its entirety.
Dated this 10th day of July, 2015
BY THE COURT:
s/ Joseph F. Bataillon
Senior United States District Judge

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