United States District Court, D. Nebraska
RICKY J. SANDERS, Plaintiff,
RICHARD CRUICKSHANK, Warden of Nebraska Penitentiary, and SCOTT R. FRAKES, Director of Nebraska Department of Correctional Services, Defendants.
MEMORANDUM AND ORDER
Smith Camp Chief United States District Judge.
matter is before the Court on the Petition for a Writ of
Habeas Corpus under 28 U.S.C. § 2254, ECF No. 1, filed
by Ricky Sanders. For the reasons stated below, the Petition
will be denied.
November 16, 2011, in the District Court for Douglas County,
Nebraska, Sanders was convicted of discharging a firearm, in
violation of Neb. Rev. Stat. § 28-1212.04,
using a firearm to commit a felony, in violation of Neb. Rev.
Stat. § 28-1205(1)(a)(c). According to the evidence at
trial, a passenger in a vehicle driven by Sanders fired
gunshots at a house in Omaha, Nebraska, and the court
instructed the jury that Sanders could be found guilty on a
theory of aiding and abetting. The Douglas County District
Court sentenced Sanders to not less than ten years' nor
more than fifteen years' incarceration on both counts, to
be served consecutively. Transcript, ECF No. 24, Page ID 867.
January 20, 2012, Sanders directly appealed his conviction to
the Nebraska Court of Appeals arguing there was insufficient
evidence to support his convictions and that the district
court imposed an excessive sentence. The Douglas County
Public Defender's Office represented Sanders at trial
and, on appeal, Sanders asked the court to appoint substitute
counsel because he was unhappy with counsel's
performance. The Court of Appeals denied the motion to
appoint substitute counsel and summarily affirmed
Sanders's conviction and sentence. Sanders did not seek
further review of this decision by the Nebraska Supreme
his direct appeal, Sanders filed a pro se motion for
postconviction relief under the Nebraska Postconviction
Relief Act, Neb. Rev. Stat. § 29-3001 et seq.,
with the Douglas County District Court. The motion asserted a
claim for ineffective assistance of counsel based on
counsel's failure to challenge the
constitutionality-state and federal- of Neb. Rev. Stat.
§ 28-1212.04, and counsel's failure to move to
suppress evidence obtained from a warrantless search of the
vehicle. The district court denied Sanders's motion, and
he appealed the denial directly to the Nebraska Supreme
Court. The Nebraska Supreme affirmed the denial
“because counsel could not be found to be deficient
[under Strickland v. Washington for failing to
raise a novel constitutional challenge[, ]” and because
the record “show[ed] that the search was made incident
to Sanders' arrest and was based on a reasonable belief
that the vehicle contained evidence of the offense for which
[he] was arrested.” State v. Sanders, 855
N.W.2d 350, 356, 359 (Neb. 2014). The Court also found that
the stop of Sanders's vehicle was constitutional because
it was prompted by a traffic violation. Id. at
then filed a petition for habeas corpus under Neb. Rev. Stat.
§ 29-2801 et seq, in the District Court for
Lancaster County, Nebraska, arguing his judgment of
conviction was void because Neb. Rev. Stat. §
28-1212.04, on its face, violates the Nebraska Constitution
and the United States Constitution. The district court denied
the petition because, under Nebraska law, Sanders's
conviction was a final judgment that could not be
collaterally attacked with a petition for habeas corpus. The
Nebraska Supreme Court affirmed the denial. Sanders v.
Frakes, 888 N.W.2d 514 (Neb. 2016) (“Section
29-2801 explicitly excludes from its scope ‘persons
convicted of some crime or offense for which they stand
committed.'”). Thus, neither the district court nor
the Nebraska Supreme Court reached the question of the
constitutionality of the statute.
February 15, 2017, Sanders filed his Petition, ECF No. 1, for
habeas corpus under 28 U.S.C. § 2254 with this Court.
After an initial review, Judge Richard Kopf found that
Sanders's petition included two potentially cognizable
claims: (1) ineffective assistance of counsel and (2) the
statute of conviction, Neb. Rev. Stat. § 28-1212.04, is
facially unconstitutional under the Equal Protection Clause
of the Fourteenth Amendment to the United States
Constitution. ECF No. 4; ECF No. 18 (amending, in part, ECF
No. 4). Defendants Richard Cruickshank and Scott Frakes
(Defendants) filed an Answer, ECF No. 24, to the Petition
with an accompanying brief, ECF No. 25; Sanders filed a
response brief, ECF No. 35; and Defendants filed a reply
brief, ECF No. 38. Accordingly, the Petition is ripe for
28 U.S.C. § 2254(b)(1), when a state court provides an
effective and available corrective process, a federal court
may not grant habeas relief if the petitioner failed to
“exhaust the remedies available in the courts of the
State.” State courts are entitled to “one full
opportunity to resolve any constitutional issues;”
thus, a petitioner must “invoke one complete round of
the State's established appellate review process before
[the petitioner] present[s] those issues in an application
for habeas relief in federal court.” Welch v.
Lund, 616 F.3d 756, 758 (8th Cir. 2010) (quoting
O'Sullivan v. Boerckel, 526 U.S. 838, 845
(1999)). “A [petitioner] is not required to pursue
‘extraordinary' remedies outside of the standard
review process, but he ‘must seek the discretionary
review of the state supreme court when that review is part of
the ordinary and established appellate review process in that
state.'” Id. (quoting Dixon v.
Dormire, 263 F.3d 774, 777 (8th Cir.2001)). A failure to
exhaust available state court remedies properly within the
allotted time “results in procedural default of the
[petitioner's] claims.” Id.
28 U.S.C. § 2254(d), federal courts conduct “only
a limited and deferential review of underlying state court
decisions” giving deference to “decision[s] by a
state court ‘with respect to any claim that was
adjudicated on the merits in State court
proceedings.'” Worthington v. Roper, 631
F.3d 487, 495 (8th Cir. 2011) (quoting Collier v.
Norris, 485 F.3d 415, 421 (8th Cir. 2007)). Even if a
petitioner has exhausted available state court remedies, the
petitioner is still precluded from habeas relief unless a
state court decision:
(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States;
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.
28 U.S.C. § 2254(d).
burden is on the petitioner to prove that a state court's
application of federal law was objectively unreasonable.
Woodford v. Visciotti, 537 U.S. 19, 25 (2002).
“A state court decision is ‘contrary to'
clearly established federal law if it either ‘arrives
at a conclusion opposite that reached by [the Supreme] Court
on a question of law' or ‘decides a case
differently than th[e] [Supreme] Court has on a set of
materially indistinguishable facts.'”
Worthington, 631 F.3d at 495 (quoting Williams
v. Taylor, 529 U.S. 362, 412-13 (2000)). It is not
enough that a federal court “would have applied federal
law differently from the state court; the state court's
application must have been objectively unreasonable.”
Rousan v. Roper, 436 F.3d 951, 956 (8th Cir. 2006).
A federal court must presume that a factual determination
made by the state court is correct, unless the petitioner
“rebut[s] the presumption of correctness by clear and
convincing evidence.” 28 U.S.C. § 2254 (e)(1).
state court adjudication [of a particular claim], a federal
habeas court [should] apply de novo review.”
Worthington, 631 F.3d at 495; see also Gabaree
v. Steele, 792 F.3d 991, 999 (8th ...