United States District Court, D. Nebraska
JONATHON L. ARMENDARIZ, Petitioner,
SCOTT R. FRAKES, Director of the Nebraska Department of Corrections, Respondent.
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge
This matter is before the court on Petitioner Jonathon Armendariz’s Petition for Writ of Habeas Corpus (“petition”). (Filing No. 1.) For the reasons that follow, the court will dismiss the petition with prejudice and deny a certificate of appealability.
In July, 2011, Petitioner pled guilty to one count of second degree murder and one count of use of a firearm to commit a felony. Petitioner was sentenced to 80 years to life imprisonment on the murder charge, and 10 to 20 years imprisonment on the firearm charge. (Filing No. 5-3 at CM/ECF pp. 4-5.) Petitioner was 17 years old at the time the crimes were committed.
Petitioner filed a direct appeal, arguing that the district court abused its discretion by imposing excessive sentences. (Filing No. 5-4 at CM/ECF pp. 5, 7-14.) The Nebraska Supreme Court summarily affirmed the district court’s judgment. (Filing No. 5-1 at CM/ECF p. 2.)
Petitioner then filed a motion for post-conviction relief in the state district court, and later an amended post-conviction motion. (Filing No. 5-13 at CM/ECF pp. 3, 37.) Petitioner raised several claims in his post-conviction motion, including a claim that his trial counsel was ineffective for failing to raise the invalidity of his plea based on Miller v. Alabama, 132 S.Ct. 2455 (2012) on direct appeal. (Filing No. 5-13 at CM/ECF pp. 96-100.) Petitioner asserted that counsel should have argued that his plea should be withdrawn because Petitioner only agreed to plead guilty to avoid a life sentence without parole. (Id.) The district court denied Petitioner’s post-conviction claims without an evidentiary hearing. (Filing No. 5-13 at CM/ECF pp. 138-45.)
Petitioner appealed to the Nebraska Supreme Court, which affirmed the district court’s judgment. (Filing No. 5-3.) In doing so, the Nebraska Supreme Court stated the following with respect to Petitioner’s Miller claim:
In Miller v. Alabama, the U.S. Supreme Court held that a juvenile cannot be subject to a mandatory sentence of life imprisonment without parole for a homicide. If applied to Armendariz, who was 17 years old at the time of the murder, Miller would have eliminated the possibility of mandatory life imprisonment for a first degree murder charge. Miller was decided after Armendariz entered his plea. Because of this timing, the district court reasoned Miller could not be the basis of Armendariz’ ineffective assistance of counsel claim.
But Armendariz did not allege that trial counsel was ineffective in failing to anticipate Miller at the time he advised Armendariz to enter the plea. Instead, he argues that his counsel was ineffective for failing to raise an appellate argument based on Miller.
Armendariz acknowledges that Miller was not actually decided until after his direct appeal was completed. He argues, however, that the U.S. Supreme Court had granted certiorari in Miller before counsel submitted his direct appeal brief. Armendariz alleges that his counsel acted in a deficient manner because he should have been aware of the potential impact of Miller on his case and should have asked that the appeal be stayed pending the outcome of Miller.
Appellate counsel did not perform in a deficient manner by failing to ask that the appeal be stayed pending the outcome of Miller. The failure to anticipate a change in existing law does not constitute deficient performance.
(Filing No. 5-3 at CM/ECF p. 12); State v. Armendariz, 289 Neb. 896, 911, 857 N.W.2d 775, 788 (2015) (footnotes omitted).
Petitioner alleges that his sentence for second degree murder violates the Eighth Amendment’s prohibition against cruel and unusual punishment. Petitioner, who was 17 years old at the time the crimes were committed, argues that his sentence is unconstitutional under Miller because it is “essentially” a life sentence. (Filing No. 1 at CM/ECF p. 24.) Petitioner’s brief in response to Respondent’s answer also asserts that his ...