United States District Court, D. Nebraska
JAMES D. JOHNSON, et al., Petitioners,
SCOTT R. FRAKES, Nebraska Department of Correctional Services Director, Respondent.
CORRECTED MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge
D. Johnson (Johnson) has filed a habeas corpus petition under
28 U.S.C. § 2254 attacking Nebraska's failure to
award “good time credit” for mandatory minimum
sentences. He also purports to represent 800 or more other
prisoners in the custody of the Nebraska Department of
Corrections and moves for class certification. Because it
plainly appears from the petition that Johnson is not
entitled to relief, I will dismiss the petition under the
provisions of Rule 4 of the Rule Governing Section 2254
Cases in the United States District Courts and I will do
so with prejudice. I will deny the motion for class
certification as moot. I will grant the motion to proceed in
forma pauperis. Finally, I will deny a certificate of
long time now, the Nebraska Supreme Court has interpreted
Nebraska law to hold that a statute requiring an executive
officer of a correctional facility to reduce the term of a
committed offender for good behavior did not apply
to reduce mandatory minimum sentences imposed on habitual
criminals. Johnson v. Kenney, 654 N.W.2d 191 (Neb.
2002). Johnson thinks that decision was wrong but the
Nebraska courts have continued to follow it nevertheless.
See, e.g., Caton v. Nebraska, 869
N.W.2d 911 (Neb. 2015) (“Logically, a defendant must
serve the mandatory minimum portion of a sentence before
earning good time credit toward the maximum portion of the
sentence.”); State v. Castillas, 826 N.W.2d
255 (Neb. 2013) (“[G]ood time reductions do not apply
to mandatory minimum sentences.”) as clarified on other
grounds by State v. Lantz, 861 N.W.2d 728 (Neb.
the meaning of a Nebraska statute is quintessentially the
exclusive province of the Nebraska Supreme Court. This being
true, I lack the power to review the decisions of the
Nebraska Supreme Court because a federal district court in a
habeas case is limited to resolving federal claims.
Indeed, § 2254 makes plain that I have the
power to act “only on the ground that [a
petitioner] is in custody in violation of the Constitution or
laws or treaties of the United States.”
(Italics added.) Thus, under no circumstance could there be a
meritorious federal claim in a case like this and the
petition will therefore be dismissed with
cannot get around this essential problem by figuratively
chanting a federal “due process” mantra. One can
call a dull duck a majestic swan but that does not make it
so. There is not the slightest basis for placing this case
within the protective ambit of the federal due process
clause. The Nebraska Supreme has definitively ruled and
Nebraska's inferior courts and administrative agencies
are bound to follow that ruling. Whatever “process was
due, ” either to the litigants in the particular cases
that resulted in this “no good time” rule or to
the citizens who would be subsequently impacted, was provided
during the Nebraska Supreme Court's decisional process
where briefs were submitted, arguments were made and opinions
the case of Wolf v. McConnell, 418 U.S. 539 (1974)
is of no aid to Johnson because, although that case dealt
with the administrative revocation of good time credit (among
many other things), it had nothing whatever to do with a
state high court construing a state statute to determine when
good time credit must be awarded. Indeed, it appears that
Johnson is alleging that the Nebraska Department of
Corrections is denying him “due process” because
it is following Nebraska law as laid down by the Nebraska
Supreme Court. In short, Johnson's claim is, from the
viewpoint of both law and logic, an utter contradiction in
a petitioner cannot appeal an adverse ruling on his petition
for writ of habeas corpus under § 2254 unless he is
granted a certificate of appealability. 28 U.S.C. §
2253(c)(1); 28 U.S.C. § 2253(c)(2);
Fed. R. App. P. 22(b)(1). The standards for
certificates (1) where the district court reaches the merits
or (2) where the district court rules on procedural grounds
are set forth in Slack v. McDaniel, 529 U.S. 473, 484-485
(2000). I have applied the appropriate standard and
determined that Petitioner is not entitled to a certificate
application to proceed in forma pauperis (filing no.
2) is granted.
motion for Class Action Certification and Appointment of
Class Counsel (filing no. 4) is denied as moot.
Petition for Writ of Habeas Corpus (filing no. 1) is
dismissed with prejudice for lack of a federal claim.
certificate of appealabilility will be granted.
judgment will be entered by ...