United States District Court, D. Nebraska
SCOTTY R. GLASSCO, Petitioner,
SCOTT FRAKES, Director of Nebraska Department of corrections, Respondent.
MEMORANDUM AND ORDER
RICHARD G. KOPF SENIOR UNITED STATES DISTRICT JUDGE
matter is before the court on Petitioner’s Petition for
Writ of Habeas Corpus (“petition”). (Filing No.
1.) Respondent argues that Petitioner’s claims
are not yet exhausted in state court and this matter should
be dismissed without prejudice. The court agrees and will
dismiss the petition.
was convicted of burglary and misdemeanor theft on June 10,
2008, in the District Court of Nance County,
Nebraska. (Filing No. 1 at CM/ECF p. 15.) The
district court enhanced Petitioner’s conviction under
the Nebraska habitual criminal statute. On July 11, 2008,
Petitioner was sentenced to 10 to 20 years imprisonment for
burglary, and 6 months imprisonment on the theft conviction.
Petitioner was given 207 days credit for time served, and his
sentences were ordered to be served concurrently. State
v. Glassco, No. A-08-837, 2009 WL 2342740, *4 (Neb. Ct.
App. July 28, 2009).
appealed his conviction and sentence to the Nebraska Court of
Appeals. Petitioner’s conviction and sentence were
affirmed by written opinion on July 28, 2009. State v.
Glassco, No. A-08-4:11-cv-0231, 2009 WL 2342740 (Neb.
Ct. App. July 28, 2009).
to Petitioner, on or about June 11, 2014, his sentence was
recalculated by the Nebraska Department of Corrections.
Petitioner claims the recalculation was done on account of a
misinterpretation of “mandatory minimum
sentences” under Nebraska law. (Filing No. 1 at CM/ECF
p. 5.) Petitioner argues that his grounds for habeas relief
did not become evident until June 21, 2014, when he received
a new sentence sheet which reflected the increase in his
sentence. (Filing No. 1 at CM/ECF pp. 12-13.)
difficult to tell from the state records provided by
Petitioner, but it appears that sometime in late 2014 or
early 2015, Petitioner filed a “Motion for Specificity
in Sentencing or Re-Sentencing” in state district
court. (Filing No. 12 at CM/ECF p. 4.) A hearing on the
motion was held on February 12, 2015. The district court
denied the motion on February 12, 2015, finding as follows:
“[T]he court is without authority to alter or modify
its judgment after term. The Defendant appealed the sentence
and the appeal was denied and the sentence and judgment of
the Court was affirmed. The Defendant has filed for post
conviction relief and the appeal of the denial for post
conviction relief was affirmed.” (Filing No. 12 at
CM/ECF p. 5.)
filed his Petition for Writ of Habeas Corpus in this court on
September 21, 2015. (Filing No. 1.) Respondent filed an
Answer and Brief in Support of Answer on February 10, 2016.
(Filing Nos. 9, 10.) Respondent did not,
however, submit any state court records, asserting that
“there are no state court records regarding the
Petitioner’s claim as he has not sought a remedy for
his claim in State Court by means of a declaratory judgment
action.” (Filing No. 8 at CM/ECF p. 1.)
action, Petitioner challenges the recalculation of his
criminal sentence by officials of the Nebraska Department of
Correctional Services (“NDCS”). Petitioner
maintains that his minimum sentence, as it was recalculated
by NDCS officials, is five years greater than the sentence
imposed by the state district court. In response, Respondent
asserts that this case should be dismissed without prejudice
because Petitioner has failed to exhaust his state remedies
regarding this issue.
forth in 28 U.S.C. § 2254:
(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