Iromuanya v. Frakes

• Citation: 866 F.3d 872
• Decision Date: 07 August 2017
• Docket Number: No. 16-1935,16-1935
• Parties: Lucky I. IROMUANYA, Petitioner-Appellant v. Scott FRAKES, Director, Nebraska Department of Correctional Services, Respondent-Appellee
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

866 F.3d 872

Lucky I. IROMUANYA, Petitioner-Appellant

v.Scott FRAKES, Director, Nebraska Department of Correctional Services, Respondent-Appellee

No. 16-1935

United States Court of Appeals, Eighth Circuit.

Submitted: May 10, 2017

Filed: August 7, 2017

Counsel who presented argument on behalf of the appellant was Jennifer L. Gilg, AFPD, of Omaha, NE. The following attorney(s) appeared on the appellant brief; Julie Beth Hansen, AFPD, of Omaha, NE., Jennifer L. Gilg, AFPD, of Omaha, NE.

Counsel who presented argument on behalf of the appellee was James D. Smith, AAG, of Lincoln, NE. The following attorney(s) appeared on the appellee brief; James D. Smith, AAG, of Lincoln, NE.

Before RILEY, BEAM, and SHEPHERD, Circuit Judges.

BEAM, Circuit Judge.

Lucky Iromuanya appeals the district court's¹ denial of his 28 U.S.C. § 2254 petition for habeas corpus relief. We affirm.

I. BACKGROUND

The following facts were set forth by the Nebraska Supreme Court and are presumed to be correct under our standard of review. See 28 U.S.C. § 2254(e). Iromuanya was at a college house party in Lincoln, Nebraska, in April 2004 when a dispute arose over an allegedly stolen shot glass collection. A house resident confronted Iromuanya and Iromuanya's friend when they sought to leave the party. She asserted that no one was leaving the party until the shot glasses were recovered. A shoving match ensued between her boyfriend, Nolan Jenkins, and Iromuanya, wherein Iromuanya punched Jenkins and the parties were separated. Jenkins was subsequently informed that Iromuanya had not taken the shot glasses, and approximately five minutes later, Jenkins walked back toward Iromuanya, ostensibly to shake hands and settle the matter, but Iromuanya again shoved Jenkins when Jenkins got close to him. Another scuffle ensued, but this time Iromuanya took a handgun from his pants and fired a shot. The bullet hit Jenkins, but traveled through him and hit Jenna Cooper, another resident at the house where the party took place. Cooper subsequently died of her injuries. Iromuanya left the scene but was arrested later that evening. In a videotaped statement taken that evening (which was shown to the jury during trial), Iromuanya informed the police that he did intend to shoot the gun but did not intend to hit anyone, and that he instead attempted to shoot to the side of Jenkins to scare him. State v. Iromuanya (Iromuanya I ), 272 Neb. 178, 719 N.W.2d 263, 273-77 (2006).

The primary issue at Iromuanya's trial was whether the state could prove second-degree murder or only manslaughter for Cooper's death and the attempted versions of those crimes for Jenkins' shooting. Iromuanya requested that the trial court include "malice" as an element of the second-degree-murder instruction (which was declined) and also proposed his own theory-of-defense instruction, which spelled out his assertion from the taped statement that he did not intend to shoot anyone but only intended to scare them. The court declined this request, finding that the other instructions adequately conveyed Iromuanya's theory of defense. Iromuanya apparently requested a self-defense instruction, which the court also declined to give.

On the attempted second-degree-murder charge (involving Jenkins), the court instructed the jury that it could find Iromuanya either guilty or not guilty of the charge, but it did not include an option for finding Iromuanya guilty of a lesser included offense of attempted manslaughter. Nor did the attempted second-degree-murder instruction include any instructions about lack of provocation. With regard to the charge of second-degree murder (of Cooper), the court did include manslaughter as a lesser included offense, and included instructions about sudden-quarrel provocation, but it did so in a "step" instruction—meaning that the jury would only consider manslaughter and sudden-quarrel provocation if it found Iromuanya not guilty of second-degree murder and proceeded to the next part of the instruction. During deliberations, an additional instruction was given after the jury posed a question about the effect of a "sudden quarrel" on attempted second-degree murder. The court instructed the jury that it could not consider "sudden quarrel" when deciding guilt on the charge of attempted second-degree murder. The jury ultimately convicted Iromuanya of the attempted second-degree murder of Jenkins, second-degree murder of Cooper, and both weapons charges, and he was sentenced to an aggregate prison term of 70 years to life imprisonment. Id. at 273.

The Nebraska Supreme Court affirmed Iromuanya's conviction on direct appeal. In that appeal, Iromuanya argued that the trial court erred in failing to instruct the jury on malice as an element of second-degree murder and failed to give his requested self-defense instruction. Id. at 286. The Nebraska Supreme Court held that because "[m]alice is not an element of second degree murder ... the district court ... did not err in refusing to instruct that it was." Id. at 289 (citing Neb. Rev. Stat. § 28-304(1) ; State v. Burlison , 255 Neb. 190, 583 N.W.2d 31 (1998) ). The court further held that there was "no evidence in the record to support a reasonable and good faith belief that Iromuanya was threatened with death or serious bodily harm at the time he fired the handgun" and a self-defense instruction was therefore not warranted. Id. at 290.

During state postconviction proceedings, Iromuanya challenged his trial counsel's effectiveness for failing to properly challenge the jury instructions. On appeal of the denial of postconviction relief, the Nebraska Supreme Court again denied relief. State v. Iromuanya (Iromuanya II ), 282 Neb. 798, 806 N.W.2d 404 (2011). As relevant to this appeal, after Iromuanya I but before Iromuanya II , the Nebraska Supreme Court decided State v. Ronald Smith , 282 Neb. 720,806 N.W.2d 383, 394 (2011),² which overruled an earlier case holding that manslaughter was an unintentional crime, and held that the offense of manslaughter was an intentional killing without malice, upon a sudden quarrel. In Iromuanya II , the court held that counsel was not ineffective for not anticipating this change in the law, and also held that the state was not constitutionally required to prove a lack of sudden-quarrel provocation for the attempt to cause Jenkins' death. 806 N.W.2d at 435.

Iromuanya filed the current 28 U.S.C. § 2254 petition for habeas corpus relief in 2012, raising an ineffective assistance of counsel claim for counsel's deficient performance during plea negotiations and for failing to object to the sudden-quarrel jury instruction as a step instruction for second-degree murder. Iromuanya also alleged that the following due process violations occurred during his trial: that the trial court failed to include manslaughter as a lesser included offense of second-degree murder; failed to instruct that the prosecutor must prove the absence of a sudden quarrel beyond a reasonable doubt; and failed to properly instruct the jury on the distinction between "intent to kill" and "intent to kill resulting from a sudden quarrel."

The district court held that the ineffective assistance claims failed on the merits, because the Nebraska Supreme Court's determination that counsel's performance was not deficient was not an unreasonable application of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), nor was it an unreasonable determination of the facts in light of the evidence adduced at trial. See 28 U.S.C. § 2254(d). With regard to the due process claims, the district court determined that the claims were not fairly presented to the state courts and were thus procedurally defaulted. However, the court went on to discuss and reject the due process claims on the merits, noting that at the time of Iromuanya's trial, manslaughter on a sudden quarrel was not a lesser included offense of second-degree murder. The due process claims were certified for appellate review.

II. DISCUSSION

A. Standard of Review

We review petitions for writ of habeas corpus under the standards set forth in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). If Iromuanya's claims were "adjudicated on the merits in State court proceedings," 28 U.S.C. § 2254(d), he is entitled to relief only by showing that the adjudication resulted in a decision that was either "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."

A state prisoner must present the substance of each federal constitutional claim to the state courts before seeking federal habeas corpus relief. Arnold v. Dormire , 675 F.3d 1082, 1086-87 (8th Cir. 2012). Under the postconviction procedures available in Nebraska, the prisoner must have presented each § 2254 claim to the Nebraska Supreme Court, either on direct review or postconviction review, before federal habeas review is available. Akins v. Kenney , 410 F.3d 451, 454-55 (8th Cir. 2005) (construing Nebraska law). If the prisoner fails to do so, the claim is procedurally defaulted. Id.

B. Procedural Default

The first dispute is whether Iromuanya has fairly presented his due process claims to the state courts, and if he did, whether they were adjudicated on the merits by the Nebraska courts. Iromuanya argues the trial court violated his due process rights by failing to properly instruct the jury as previously stated. The government argues that Iromuanya did not raise these claims in briefing to the Nebraska Supreme Court on direct or postconviction appeal. Our review of Iromuanya's direct appeal and postconviction appeal briefs indicates that Iromuanya arguably did raise the due process issues, both independently and in the context of ineffective assistance of counsel claims. And while the Nebraska Supreme Court...