Lucky I. Iromuanya Petitioner - Appellant
Scott Frakes, Director, Nebraska Department of Correctional Services Respondent - Appellee
Submitted: May 10, 2017
from United States District Court for the District of
Nebraska - Lincoln
RILEY, BEAM, and SHEPHERD, Circuit Judges.
Iromuanya appeals the district court's denial of his 28
U.S.C. § 2254 petition for habeas corpus relief. We
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), 719 N.W.2d 263, 273-77
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.
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.
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, 583
N.W.2d 31 (Neb. 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.
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), 806 N.W.2d 404 (Neb. 2011). As relevant to this
appeal, after Iromuanya I but before Iromuanya
II, the Nebraska Supreme Court decided State v.
Ronald Smith, 806 N.W.2d 383, 394 (Neb. 2011),
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.
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."
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 (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.