United States District Court, D. Nebraska
MICHALE M. DIXON, Petitioner,
DENISE SKROBECKI, Warden, Respondent.
MEMORANDUM AND ORDER
JOSEPH F. BATAILLON, Senior District Judge.
On January 8, 2015, the court dismissed three of the four claims raised by Petitioner Michale Dixon ("Dixon") in her Amended Petition for Writ of Habeas Corpus ("amended petition") (Filing No. 10). ( See Filing No. 18.) This matter is before the court for disposition of her fourth claim. Dixon argues in her fourth claim that her due process rights were violated when the state district court sentenced her as a habitual criminal.
Dixon's conviction and sentence arise out of the District Court of Lancaster County, Nebraska ("state district court"). On August 30, 2012, Dixon pled no contest to the unauthorized use of a financial device with a value between $500 and $1, 500. Following Dixon's plea, Dixon confirmed that she wanted to be sentenced immediately. The prosecution entered five exhibits into evidence relating to Dixon's various prior convictions. Dixon objected, and the court overruled her objections, finding that all of Dixon's objections were impermissible collateral attacks on the earlier judgments. The court then found Dixon to be a habitual criminal for purposes of enhancement and sentenced her to 10 to 20 years' imprisonment. State v. Dixon, 835 N.W.2d 643, 646-48 (Neb. 2013). The Nebraska Supreme Court affirmed Dixon's conviction and sentence on June 28, 2013. Id. at 650. Dixon did not file a postconviction action in the state district court. ( See Filing No. 10 at CM/ECF p. 3.)
Dixon filed her Petition for Writ of Habeas Corpus ("petition") (Filing No. 1) in this court on December 9, 2013. She filed her amended petition (Filing No. 10) on January 6, 2014, in which she raised the following claims: (1) she was denied the constitutional right to retain counsel of her own choosing; (2) she received the ineffective assistance of trial counsel; (3) her due process rights were violated when the state district court proceeded to sentencing immediately after the plea hearing; and (4) her due process rights were violated when the state district court sentenced her as a habitual criminal.
In response to the amended petition, the respondent filed an answer and a brief addressing only the first three claims ( see Filing Nos. 14 and 15). The court dismissed Dixon's first three claims in an order dated January 8, 2015 ( see Filing No. 18). The court noted in its order that Dixon's fourth claim appeared to be procedurally defaulted, but ordered the parties to present their positions on the issue. See Dansby v. Hobbs, 766 F.3d 809, 824 (8th Cir. 2014) ("The  requirements of notice and opportunity to be heard should apply when a federal court chooses to address procedural default on its own initiative.") (internal citations omitted).
The respondent filed a supplemental answer and a supplemental brief (Filing Nos. 19 and 20) addressing Dixon's fourth claim on February 2, 2015. Dixon filed a supplemental brief (Filing No. 21) in response on February 26, 2015.
Dixon argued in her fourth claim for relief that her due process rights were violated when the state district court sentenced her as a habitual criminal (Filing No. 10 at CM/ECF p. 14). The respondent argued this claim is procedurally defaulted (Filing No. 20). The question before the court is whether Dixon presented the claim to Nebraska's state courts before seeking federal habeas corpus relief and, if not, whether she is now barred from doing so.
A state prisoner must fairly present the substance of each federal constitutional claim to the state courts before seeking federal habeas corpus relief. See 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).
Dixon did not raise the substance of her fourth claim on direct appeal to the Nebraska Supreme Court. ( See Filing No. 13-3, Dixon's brief on direct appeal.) Moreover, she cannot now raise the claim in a motion for postconviction relief in state court because a postconviction motion "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). Accordingly, the court finds Dixon's fourth claim is procedurally defaulted.
The court must next consider whether Dixon has shown cause and prejudice to excuse the procedural default of her fourth claim. When a procedural default has occurred, federal habeas review is permitted only if the petitioner can demonstrate (1) cause for the default and actual prejudice as a result of the alleged violation of federal law, or (2) that failure to consider the claim ...