Henderson v. Frakes

TILLMAN T. HENDERSON, Petitioner, v. SCOTT FRAKES, and MICHELLE CAPPS, Respondents.

4:19CV3022

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

July 6, 2020

MEMORANDUM AND ORDER

This matter is before the court on Petitioner Tillman T. Henderson's ("Petitioner" or "Henderson") Petition for Writ of Habeas Corpus. (Filing No. 1.) For the reasons that follow, Petitioner's habeas petition is denied and dismissed with prejudice.

I. CLAIMS

Summarized and condensed,¹ and as set forth in the court's prior progression order (filing no. 10), Petitioner asserted the following claims that were potentially cognizable in this court:

Claim One: Petitioner was denied effective assistance of counsel because trial counsel (1) failed to raise and argue Petitioner's actual innocence (filing no. 1 at CM/ECF p. 19); (2) failed to move to compel DNA and GSR testing (id. at CM/ECF pp. 19-20, 47-49); (3) failed to interviewor call witnesses Joeanna Ball, Deonta² Marion, and Timothy Washington to testify (id. at CM/ECF pp. 20-23); (4) failed to request an instruction on a co-conspirator rule and its application to hearsay exceptions (id. at CM/ECF p. 44); (5) failed to object to Ramone Navarez's testimony based on irrelevance until after his testimony was complete (id. at CM/ECF pp. 52-53); (6) failed to impeach Officer Sarka's testimony, to introduce audio and video evidence from Sarka's cruiser to the jury, and to move to strike the portion of Sarka's testimony "identifying the defendant as the shooter from what someone else told him" (id. at CM/ECF pp. 56-57).

Claim Two: Petitioner was denied effective assistance of counsel because trial and appellate counsel (1) failed to argue State v. Tompkins which is based off U.S. v. Hahn against the State raising the good faith exception for the first time on appeal (id. at CM/ECF pp. 24-25); (2) failed to assign error to the trial court's refusal to give a limiting instruction regarding the cell phone text messages (id. at CM/ECF p. 28); (3) failed to object or assign error to photos of an individual believed to be Jimmy Levering flashing gang signs being shown to the jury (id. at CM/ECF pp. 30-31); (4) failed to object or assign error to the State showing the jury a photo of a coat worn by Petitioner the night of his arrest and saying the coat had bloodstains on it (id. at CM/ECF pp. 60-61); and (5) failed to request an attempted manslaughter instruction or assignerror to the instruction not being given (id. at CM/ECF pp. 64-65).

Claim Three: Petitioner was denied his constitutional right to a fair trial because(1) the State committed prosecutorial misconduct by its use of the "J-town" text messages (id. at CM/ECF pp. 26-27); (2) the trial court refused to give a limiting instruction regarding the cell phone text messages (id. at CM/ECF p. 29); (3) the trial court denied Petitioner's motion for a mistrial after Detective Nick Herfordt identified a photo found on the cellular phone in Petitioner's possession at the time of his arrest as Jimmy Levering "an infamous gang member" (id. at CM/ECF pp. 34-36); (4) the trial court erred in admitting the cell phone text messages because such evidence was inadmissible hearsay (id. at CM/ECF at pp. 39-40); (5) the trial court erred in admitting the cell phone text messages as statements of a co-conspirator (id. at CM/ECF pp. 43-44); and (6) the trial court failed to instruct the jury on a co-conspirator rule and its application to hearsay exceptions (id. at CM/ECF p. 44).

II. BACKGROUND

A. Convictions and Sentences

The court states the facts as they were recited by the Nebraska Supreme Court in State v. Henderson, 854 N.W.2d 616 (Neb. 2014) (filing no. 14-1). See Bucklew v. Luebbers, 436 F.3d 1010, 1013 (8th Cir. 2006) (utilizing state court's recitation of facts on review of federal habeas petition).

1. Charges and General Evidence

Henderson was convicted of first degree murder in connection with the shooting death of Matthew Voss and attempted first degree murder in connection with the shooting of Antonio Washington. He was convicted of two counts of use of a deadly weapon to commit a felony in connection with the foregoing crimes. He was also convicted of possession of a deadly weapon by a prohibited person.

Testimony at trial indicated that in the early morning hours of February 18, 2012, a fight broke out at an after-hours party in downtown Omaha, Nebraska. Witnesses reported seeing two men firing guns. Voss and Washington both sustained gunshot wounds; Voss died as a result of his wounds, while Washington survived but was severely injured.

Henderson was apprehended by police as he was running from the scene of the incident. A person who was at the scene had identified Henderson to a police officer as one of the shooters. The other suspect was not apprehended. One gun was found on Henderson's person when he was arrested, and a police officer saw Henderson throw another gun under a vehicle as the officer was chasing him.

Forensic evidence presented at trial indicated that bullets and casings found at the scene of the shootings had been fired from the gun found on Henderson and from the gun he was seen throwing under a vehicle. A fingerprint on the gun found under the vehicle matched Henderson's. In addition, DNA testing of blood found on the clothing worn by Henderson at the time of his arrest indicated that the blood had come from Voss.

The State maintained at trial that Henderson shot Voss and Washington to retaliate for an assault on Henderson's friend, Jimmy Levering. Levering and Voss had both been inmates at a prison in Florida, and Voss had allegedly stabbed and punched Levering.

2. Apprehension of Henderson

Omaha police officer Paul Sarka responded to a call regarding a fight or disturbance in the area of 16th and Harney Streets around 3 a.m. on February 18, 2012. Sarka saw a group of people outside a building in the area, but he did not see a disturbance. He circled the block and then pulled his police cruiser into an alley to park and write a report on his response to the call. Soon after parking, Sarka heard several gunshots. He pulled his cruiser out of the alley and, with the lights and sirens turned on, drove in the direction from which he thought he had heard the gunshots, which direction was toward the group of people he had seen near 16th and Harney Streets. As he drove, he radioed a message to dispatch saying, "'Shots were fired. Send more officers.'"

Sarka saw 20 to 30 people running from the scene screaming and looking like they were in fear. Sarka yelled out of his cruiser's window to the people asking them who had done the shooting, but he did not get a response. The driver of a white sport utility vehicle rolled down his window, and when Sarka asked whether the driver had seen who did the shooting, the driver replied that it was "'the black male running down the sidewalk of this side of the street in the tan Carhartt.'" Sarka saw only one man in the group of people running on the sidewalk who was wearing a tan Carhartt jacket; the man was later identified as Henderson.

Sarka yelled at Henderson, "'Police, stop.'" Henderson made eye contact with Sarka but then turned and continued running. Sarka chased Henderson, first in his cruiser and then on foot. As Sarka was chasing Henderson on foot, another police cruiser came toward Henderson which caused him to change direction. Sarka saw Henderson pull an object that looked like a gun out of his waistband or pocket and throw the object under a vehicle that was parked on the street. Sarka continued to chase Henderson and was joined by another officer. The two eventually tackled Henderson and handcuffed him. Sarka turned Henderson over to another officer, Fred Hiykel. Sarka returned to the place where he had seen Henderson throw the object under a vehicle. The object proved to be a gun.

Hiykel responded to Sarka's "'Shots were fired'" call and arrived just as Sarka took Henderson into custody. Hiykel escorted Henderson to his police cruiser. Hiykel searched Henderson and found a handgun in his pocket. He removed the gun and put it in a plastic evidence bag. Hiykel put Henderson into the back of his cruiser and drove him to police headquarters. In the interview room, Hiykel removed other personal property from Henderson's person and placed the property in an evidence bag.

3. Search of Cell Phone

Dave Schneider was one of the homicide detectives from the Omaha Police Department (OPD) assigned to investigate the shootings. One of Schneider's duties was to obtain a search warrant for a cell phone that was among the items of personal property taken from Henderson upon his arrest. Schneider himself had not come into contact with the cell phone, but he knew that other officers had turned the cell phone on to obtain its serial number and telephone number. Schneider testified that the other officers had placed the cell phone into "airplane mode" so that the cell phone could not be remotely accessed for the purpose of deleting data. Schneider prepared an affidavit and application for issuance of a warrant to search the contents of the cell phone. In the affidavit and application, Schneider generally requested a warrant to search "[a]ny and all information" contained on the cell phone. He specifically listed contacts, cell phone call lists, text messages, and voice mails, and he also requested "any other information that can be gained from the internal components and/or memory Cards." As grounds for the issuance of the warrant, Schneider asserted that Henderson was a suspect in a shooting and that the cell phone was in Henderson's possession when he was arrested. The county court for Douglas County issued the requested search warrant on February 18, 2012.

The search of the cell phone was conducted by another detective, Nick Herfordt, during the afternoon of February 18, 2012. Herfordt downloaded information from the cell phone, including the contact list, call history, and text messages....