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Sanders v. Cruickshank

United States District Court, D. Nebraska

July 13, 2018

RICKY J. SANDERS, Plaintiff,
v.
RICHARD CRUICKSHANK, Warden of Nebraska Penitentiary, and SCOTT R. FRAKES, Director of Nebraska Department of Correctional Services, Defendants.

          MEMORANDUM AND ORDER

          Laurie Smith Camp Chief United States District Judge.

         This 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.

         BACKGROUND

         On 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, [1] and using a firearm to commit a felony, in violation of Neb. Rev. Stat. § 28-1205(1)(a)(c).[2] 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.

         On 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 Court.

         After 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[3] 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 357-58.

         Sanders 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.

         On 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 review.

         STANDARD OF REVIEW

         Under 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.

         Under 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; or
(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).

         The 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).

         “Absent 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 ...


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