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Glassco v. Frakes

United States District Court, D. Nebraska

May 17, 2016

SCOTTY R. GLASSCO, Petitioner,
v.
SCOTT FRAKES, Director of Nebraska Department of corrections, Respondent.

          MEMORANDUM AND ORDER

          RICHARD G. KOPF SENIOR UNITED STATES DISTRICT JUDGE

         This 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.

         I. BACKGROUND

         Petitioner was convicted of burglary and misdemeanor theft on June 10, 2008, in the District Court of Nance County, Nebraska.[1] (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).

         Petitioner 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).

         According 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.)

         It is 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.)

         Petitioner 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.)

         II. DISCUSSION

         In this 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.

         As set 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 courts ...

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