Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

McCowin v. Nebraska State Penitentiary

United States District Court, Eighth Circuit

October 8, 2013

GARY McCOWIN, Petitioner,
v.
NEBRASKA STATE PENITENTIARY, Respondent.

MEMORANDUM AND ORDER

RICHARD G. KOPF, Senior District Judge.

Petitioner Gary McCowin ("McCowin" or "Petitioner") has filed a Petition for Writ of Habeas Corpus ("Petition"). (Filing No. 1.) Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts requires the court to make a preliminary review of each petition for writ of habeas corpus. The court must summarily dismiss a petition "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court...." Rule 4 of the Rules Governing § 2254 Cases in the United States District Courts.

I. BACKGROUND

The Petition and the exhibits attached to the Petition reflect that Petitioner pled no contest to driving under the influence, fourth offense, on November 21, 2012, in the District Court of Douglas County, Nebraska ("state district court"). (Filing No. 1 at CM/ECF p. 22.) He appealed the sentence to the Nebraska Court of Appeals, which affirmed the judgment of the state district court on June 11, 2013. ( Id. at CM/ECF p. 16.) On appeal to the Nebraska Court of Appeals, Petitioner argued that the sentence imposed by the state district court was an abuse of discretion. ( Id. at CM/ECF p. 22.) Petitioner filed his Petition in this court one month after the Nebraska Court of Appeals denied relief. (Docket Sheet.)

II. HABEAS EXHAUSTION REQUIREMENT

As set forth in 28 U.S.C. § 2254(b)(1):

(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 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 "fairly present" the substance of each federal constitutional claim to the state courts before seeking federal habeas relief. Id. at 844. 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.