Yanga v. State of Nebraska et al

Filing 11

MEMORANDUM AND ORDER - that the habeas corpus petition (filing no. 4 ) is denied and dismissed with prejudice. No certificate of appealability has been or will be issued. Judgment will be issued by separate document. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (KLF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
EMMANUEL S. YANGA,
Petitioner,
v.
STATE OF NEBRASKA, DIR.
SCOTT FRAKES, and MADSEN,
Warden,
Respondents.

)
)
)
)
)
)
)
)
)
)
)
)

8:18CV89

MEMORANDUM AND ORDER

Petitioner has filed an amended petition seeking a writ of habeas corpus (filing
no. 4). I now deny the petition and dismiss it with prejudice. No certificate of
appealability will be issued. My reasons for doing so are set forth below.
The Claims
Condensed and summarized for clarity, the claims asserted by Petitioner
regarding the state misdemeanor case in the County Court of Lancaster County,
Nebraska (county court # CR 14 0017008, appeal to district court # CR-15-552 and
appeal to the Nebraska Court of Appeals # A-17-728) are set forth below:
Claim One: Both trial counsel and appellate counsel [who were
different] provided ineffective assistance of counsel under the Sixth
Amendment.
Claim Two: The prosecutor engaged in prosecutorial misconduct in
violation of the Due Process Clause.
Claim Three: The trial court abused its discretion in violation of the
Due Process Clause.

Claim Four: The Petitioner was denied Due Process of Law, Equal
Protection of the Law, and the Fifth Amendment right to remain silent
and to be free from double jeopardy by the trial court.
As I noted at the time of initial review (filing no. 5 at CM/ECF p. 2 n.1):
Petitioner’s amended petition . . . is the one and only operative petition
and all prior petitions are dismissed without prejudice. The amended
petition is vague. I am sorry that I cannot focus this case any better, but
counsel for the Respondent should respond as best counsel can to the
“supporting facts” portion of each claim. To the extent that Petitioner
raises other claims beyond the four set forth above, I deny them because
they fail to state cognizable federal claims.1
Background
Respondents have filed an answer (filing no. 7), the state court records (filing
no. 6), and a brief (filing no. 8). Petitioner has filed a response and brief (filing no. 9;
filing no. 10) as well. Mostly, Respondents argue that the claims have been
procedurally defaulted without excuse. Petitioner’s response and brief makes no (or
at least very little) effort to address the procedural default issue.
Procedural History
1.
After a bench trial, Yanga was convicted of misdemeanor domestic
assault. At the trial, Petitioner was represented by Abby Romshek and Todd Molvar.
2.
On March 9, 2015, he was sentenced to 60 days jail to run consecutive
to any other sentence.2 (Filing no. 6-6 at CM/ECF p. 16.)
1

I ordered Petitioner to file an amended petition because the first one was “far
too vague” and the “four claims asserted fail to state the specific facts in an
understandable fashion.” (Filing no. 3.) Unfortunately, the amended petition was no
better.
2

Petitioner is in prison. He is serving time for a separate felony conviction in
the district court. The felony conviction occurred on March 4, 2015. I presume that

3.
Yanga appealed to the district court, but did not file a statement of errors,
so his conviction was reviewed for plain error, and none were found. As a result, the
district court affirmed his conviction and sentence. (Filing no. 6-6 at CM/ECF pp. 4047.) Douglas Kerns represented Petitioner.
4.
On direct appeal to the Nebraska Court of Appeals, Yanga assigned as
error that the district court erred in (1) not finding that the county court erred and
abused its discretion and deprived Yanga of his right to testify by overruling his
motion to withdraw his rest; (2) not finding counsel was ineffective for not requesting
a separate hearing to determine whether the statements made by Yanga to the police
were admissible; (3) not finding that counsel was ineffective for not requesting a
presentence investigation; (4) not finding that the county court erred in denying
Yanga’s motion to dismiss; (5) not finding that the cumulative effect of errors made
by the county court and/or ineffective assistance of counsel amount to a violation of
Yanga’s right to a fair trial; (6) not finding that the county court erred and abused its
discretion in finding him guilty when such finding was not supported by the evidence;
and (7) not finding that the county court imposed an excessive sentence. Once again,
Douglas Kerns represented Petitioner.
5.
Yanga’s conviction was affirmed on direct appeal by the Nebraska Court
of Appeals in a Memorandum Opinion filed May 13, 2016. (Filing no. 6-2.) The Court
of Appeals ruled that most of the seven assignments of error save for two were
defaulted because Yanga failed to provide the district court (then serving as an

the 60-day sentence in this case, imposed on March 9, 2015, must be served after the
felony sentence since the county judge made his sentence consecutive to any other
sentence and the county judge was aware of the felony conviction that had not yet
resulted in the imposition of sentence. The felony conviction–involving the same
victim in this case–is the subject of a separate habeas petition (18CV3009). The two
cases required separate petitions because there were separate judgments from separate
courts–one from the county court (this case) and one from the district court. See Rule
2(e) of the Rules Governing Section 2254 Cases in the United States District Courts.
3

appellate court reviewing the county court’s rulings) with a timely statement of errors.
Regarding the two claims that escaped the foregoing default, the court considered and
rejected the argument that the county court erred by failing to allow Yanga to
withdraw his rest so that he might change his mind and testify. As for the claim that
trial counsel was ineffective because counsel allegedly failed to seek suppression of
statements that Yanga made to the police, the Court of Appeals found that this alleged
error was defaulted for the separate and additional reason that Yanga had not briefed
and argued that matter to the Court of Appeals despite having assigned it as error.
Yanga’s petition for further review was denied by the Nebraska Supreme Court on
July 13, 2016. (Filing no. 6-1 at CM/ECF p. 2.) The petition was limited to one issue.
(Filing no. 6-3.) That issue was that the county judge had abused his discretion in
refusing to allow Petitioner to withdraw his rest and the Court of Appeals erred by not
so holding.
6.
On September 19, 2016, Yanga filed a pro se post-conviction action,
alleging essentially the same issues as were raised in his direct appeal. (Filing no. 615.)
7.
The district court denied an evidentiary hearing, and denied postconviction relief on June 5, 2017. (Filing no. 6-15 at CM/ECF pp. 16-21.) The court
ruled:
Here, the defendant’s claims and assignments of error have previously
been raised on appeal. He has not produced any evidence to establish
that his counsel was defective or that he was prejudiced by his counsel’s
actions or inactions. Even if the defendant’s claims were not
procedurally barred, he has not asserted any sufficient factual allegations
which constitute an infringement of his rights under the Nebraska or
United States Constitution. Because he is both procedurally barred, and
his motions allege only conclusions of fact or law, he is entitled to no
relief.
Id. at p. 19. (Italics added.)
4

8.
The Nebraska Court of Appeals summarily affirmed the denial of postconviction relief on November 21, 2018. (Filing no. 6-12 at CM/ECF p. 2.) It ruled
that:
Motion of appellee for summary affirmance sustained; judgment
affirmed. See Neb. Ct. R. App. P. § 2-107(B)(2). Appellant’s claims were
either procedurally barred, had already been raised and resolved on
direct appeal, or his petition contained insufficient factual allegations of
an infringement of his constitutional rights. Also, an alleged error must
be both specifically assigned and specifically argued in the brief of the
party asserting the error to be considered by an appellate court. See State
v. Thompson, 278 Neb. 320 (2009); State v. Henry, 292 Neb. 834 (2016).
Id.
9.
Yanga filed a petition for further review, which was denied by the
Nebraska Supreme Court on December 19, 2018. (Filing no. 6-12 at CM/ECF p. 2.)
The mandate issued on January 3, 2018. (Id.)
10.
no. 1.)

Yanga filed his first federal habeas petition on February 26, 2018. (Filing

Facts
The facts that supported the conviction in this matter were briefly summarized
by the Court of Appeals when denying relief on the direct appeal. The court stated:
Mazaher Bakry testified that she was in an intimate relationship
with Yanga beginning in 2011 until sometime in 2014. Bakry testified
that one morning in March 2014, she was sleeping on the couch in her
residence when Yanga returned home at approximately 7 a.m. An
argument ensued, and when Bakry attempted to leave the residence,
Yanga grabbed her and began hitting her, causing injury to her neck and
5

shoulders. Bakry contacted the police and upon their arrival, they
interviewed Yanga and photographed Bakry’s injuries.
The officers who responded to Bakry’s phone call testified that
Yanga was not under arrest during their initial interview with him at the
residence and that he spoke freely, voluntarily and knowingly. The
officers did not believe Yanga appeared intoxicated during the interview.
Yanga told officers that he had put his hands on Bakry’s shoulders to
keep her from leaving the apartment, but that he had not caused her
injuries. After speaking with Bakry and Yanga, the officers took Yanga
into custody. After Yanga was transported to jail, he was Mirandized and
waived his Miranda rights.3
At trial, Yanga’ s attorney indicated that Yanga wished to testify.
The county court informed Yanga of his privilege against
self-incrimination. The court also advised Yanga that testifying was a
right that he had, but that he would be subject to cross- examination and
that his testimony could be used against him. After being so advised by
the county court, Yanga consulted with his attorney and ultimately chose
not to testify.
The county court found Yanga guilty of third degree domestic
assault. Yanga subsequently filed a motion to withdraw his rest, a copy
of which is not included in our record. The county court entertained the
motion prior to sentencing. Yanga’s attorney argued that Yanga had
misunderstood his appeal rights and that Yanga should be allowed to
withdraw his rest and testify on his own behalf. The county court
overruled the motion and sentenced Yanga to 60 days in county jail.
(Filing no. 6-2 at CM/ECF pp. 1-3)

3

He essentially repeated to the police what he had told them during his noncustodial interview.
6

Law
There are two strands of law that are applicable here, and they are (1)
exhaustion and procedural default and (2) deference. I elaborate upon those concepts
next.
Exhaustion and Procedural Default
As set forth in 28 U.S.C. § 2254:
(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

(B)

(i)

there is an absence of available State
corrective process; or

(ii)

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

7

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 present the substance of each federal
constitutional claim to the state courts before seeking federal habeas corpus relief. 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).
“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.” Carney v. Fabian, 487 F.3d
1094, 1096 (8th Cir. 2007) (internal citation and quotation marks omitted). Although
the language need not be identical, “[p]resenting a claim that is merely similar to the
federal habeas claim is not sufficient to satisfy the fairly presented requirement.”
Barrett v. Acevedo, 169 F.3d 1155, 1162 (8th Cir. 1999). In contrast, “[a] claim has
been fairly presented when a petitioner has properly raised the ‘same factual grounds
and legal theories’ in the state courts which he is attempting to raise in his federal
habeas petition.” Wemark v. Iowa, 322 F.3d 1018, 1021 (8th Cir. 2003) (citation
omitted).
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

8

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)).
To be precise, a federal habeas court may not review a state prisoner’s federal
claims if those claims were defaulted in state court pursuant to an independent and
adequate state procedural rule “unless the prisoner can demonstrate cause for the
default and actual prejudice as a result of the alleged violation of federal law, or
demonstrate that failure to consider the claims will result in a fundamental
miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991).
Nebraska Law Relevant to Procedural Default
Under Nebraska law, you don’t get two bites of the post-conviction apple; that
is, “[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). See also State v.
Thorpe, 858 N.W.2d 880, 887 (Neb. 2015)
On appeal, the appealing party must both assign the specific error and
specifically argue that error in the brief. Otherwise the claim is defaulted under
Nebraska law. State v. Henry, 875 N.W.2d 374, 407 (Neb. 2016) (stating an alleged
error must be both specifically assigned and specifically argued in the brief of the
party asserting the error to be considered by an appellate court).
Deference 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
9

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). 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. Williams v.
Taylor, 529 U.S. 362, 405-406 (2000). 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, 562 U.S. 86, 102 (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.
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
10

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:
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.
Analysis
I agree with Respondents that all four claims are procedurally defaulted and
that no excuse has been presented that would allow me to ignore these defaults.
However, my analysis is somewhat more intricate. There are various reasons for the
defaults and various reasons why the defaults cannot be excused. Moreover, as to the
one issue that was resolved on the merits, but may not be a part of the claims asserted
by Petitioner here, the deference owed the Nebraska Court of Appeals trumps that

11

one complaint assuming for the sake of argument that it is fairly raised in this court
and not procedurally defaulted.
On direct appeal, Petitioner largely failed to abide by Nebraska law regarding
perfecting a direct appeal from the county court to the district court and then to the
Court of Appeals. Only one argument was properly presented to the Nebraska
Supreme Court during the direct appeal, and that argument dealt with the county
judge’s refusal to allow Yanga to withdraw his rest. Therefore, Nebraska has been
denied “one complete round” of direct appellate review for all other issues raised by
Yanga.
The pro se post-conviction action was a rehash of the direct appeal issues and,
importantly, Yanga asserted only conclusions of law and fact that were insufficient
to make out a Constitutional violation. Thus, any attack on his appellate counsel for
his failure to attack trial counsel was defaulted in the post-conviction litigation. If
trial counsel performed adequately or Petitioner suffered no prejudice, then appellate
counsel could not be ineffective for failure to press those claims properly. As to other
issues, under Nebraska law, a post-conviction action cannot substitute for a direct
appeal where, as here, Yanga had separate appellate counsel and where, as here, the
issues were known at the time of the direct appeal.
In short, Petitioner now has no available remedy in the Nebraska courts that
would allow him to cure these defaults. His claims are procedurally defaulted as a
result.
If it could be argued that the defaults that occurred during the direct appeal
were the fault of separate appellate counsel and such errors constituted “cause” to
excuse the procedural default notwithstanding the adverse post-conviction ruling,
Petitioner would still have to show “prejudice” assuming the cause and prejudice
standard was applied. “To demonstrate procedural bar prejudice, [Petitioner] ‘must
shoulder the burden of showing, not merely that the errors at his trial created a
12

possibility of prejudice, but that they worked to his actual and substantial
disadvantage, infecting his entire trial with error of constitutional dimensions.’”
Armstrong v. Kemna, 590 F.3d 592, 606 (8th Cir. 2010) (quoting United States v.
Frady, 456 U.S. 152, 170 (1982)).4 Yanga has not come close to doing so.
For example, both the post-conviction district court judge and the Court of
Appeals that summarily affirmed the denial of post-conviction relief considered
essentially the same issues presented to the Court of Appeals on direct appeal and
found that Yanga had asserted insufficient allegations of fact and law in the postconviction action regarding the actions of trial counsel. In short, Yanga has shown
no prejudice for the alleged errors of his appellate counsel for failing to adequately
attack trial counsel.
Additionally, there is no reason to believe Petitioner is actually (meaning
factually) innocent or that some miscarriage of justice took place. I have examined
the trial transcript. The evidence was sufficient to convict the Petitioner beyond a
reasonable doubt. Moreover, Yanga’s assertion that his victim injured herself after
he admittedly grabbed her and restrained her from leaving the home is preposterous.5
There is simply no basis to conclude that he is factually innocent.
I specifically pause to address the only issue that was resolved by the Court of
Appeals on the merits and the only issue presented to the Nebraska Supreme Court

4

The same would be true under a straightforward application of the “prejudice
prong” of the Strickland standard. Yanga could “only prevail on appeal if he
convinces us there is a reasonable probability that, but for his appellate counsel’s
failure . . . , he would have prevailed before the” state appellate courts. Pfau v. Ault,
409 F.3d 933, 939 (8th Cir. 2005).
5

According to Yanga, after he grabbed her, the victim supposedly placed lotion
on her neck and rubbed her shirt collar against the lotion thus causing the abrasion that
was photographed by the police.
13

on direct appeal. That issue was the county court’s refusal to allow Petitioner to
withdraw his rest and testify. While I wonder whether this issue is fairly covered by
any of the claims in this federal case, there is, in any event, nothing about that
decision that entitles Petitioner to relief.
On direct appeal, the Court of Appeals held that the county court did not abuse
its discretion in refusing Petitioner’s motion to withdraw his rest in order to testify.
The Court Appeals found that the motion to withdraw Yanga’s rest was made after
he was found guilty. The Court of Appeals summarized its analysis this way:
Based upon our review of the record, we conclude that the county court
acted within its discretion to deny this motion, particularly given the late
stage at which it was filed, the strategic calculation that a criminal
defendant must make in determining whether to testify, the ability of
Yanga to have testified at trial, the court affirmatively advising of
Yanga of his right to testify, and the potential for unfair advantage if a
defendant were allowed to wait until after a conviction to decide
whether to waive his right against self-incrimination. Because we find
no abuse of discretion by the county court, this assignment of error is
without merit.
(Filing no. 6-2 at CM/ECF p. 8.)
To the degree that a federal question is presented because Yanga was belatedly
asserting his Constitutional right to testify and to the degree that this issue may
properly be considered as part of one or more of the claims asserted by Petitioner in
this case, the federal law is plainly against Petitioner and he loses on the merits. See,
e.g., United States v. Martinez, 872 F.3d 293, 298-301 (5th Cir. 2017) (affirming the
denial of defendant’s request to withdraw his rest in order to testify, observing that
the reopening of a criminal case after the close of evidence lies within the sound
discretion of the trial court). Inasmuch as Yanga did not move to withdraw his rest
until after he had been found guilty, it would be impossible for me to conclude that
the state court acted contrary to clearly established federal law.
14

No Certificate of Appealability
Lastly, 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); 28 U.S.C. § 2253(c)(2); Fed. R. App. P. 22(b)(1). The standards
for certificates (1) where the district court reaches the merits or (2) where the district
court rules on procedural grounds are set forth in Slack v. McDaniel, 529 U.S. 473,
484-485 (2000). I have applied the appropriate standard and determined that
Petitioner is not entitled to a certificate of appealability.
IT IS ORDERED that the habeas corpus petition (filing no. 4) is denied and
dismissed with prejudice. No certificate of appealability has been or will be issued.
Judgment will be issued by separate document.
DATED this 10th day of July, 2018.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

15