United States District Court, D. Nebraska
MEMORANDUM AND ORDER
SMITH CAMP, CHIEF UNITED STATES DISTRICT JUDGE
matter is before the Court on the Petition for Writ of Habeas
Corpus, ECF No. 1, filed by David Ware. For the reasons
stated below, the Petition will be denied.
April 13, 1984, Petitioner David Ware was convicted of first
degree murder and later received a mandatory life sentence.
The Nebraska Supreme Court affirmed his conviction and
sentence. State v. Ware, 365 N.W.2d 418 (Neb. 1985).
Ware was eighteen years old when he committed the murder.
August 16, 2012, Ware filed a motion for postconviction
relief with the District Court for Douglas County, Nebraska,
asserting his life sentence was unconstitutional under
Miller v. Alabama, 567 U.S. 460 (2012). In
Miller, the Supreme Court held “that mandatory
life without parole for those under the age of 18 at the time
of their crimes violates the Eighth Amendment's
prohibition on ‘cruel and unusual
punishments.'” 567 U.S. at 465. The district court
denied Ware's postconviction motion for resentencing and
the Nebraska Supreme Court affirmed because Ware was over
eighteen when he committed the murder and
“Miller applies to those individuals who were
under the age of 18 at the time a crime punishable by a life
sentence without the possibility of parole was
committed.” State v. Ware, 870 N.W.2d 637, 640
filed his habeas Petition with this Court on March 20, 2017,
arguing his sentence violates the Eighth Amendment's
prohibition on cruel and unusual punishments after
Miller. The Petition has been fully briefed and is
ripe for review.
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 Supreme Court holdings [was] [ ]
‘objectively unreasonable,' not merely
wrong.” Ervin v. Bowersox, 892 F.3d 979, 983
(8th Cir. 2018) (quoting White v. Woodall, 572 U.S.
415, 134 S.Ct. 1697, 1702 (2014)). “A state court
‘unreasonably applies' Supreme Court precedent if
it ‘identifies the correct governing legal principle
from th[e] [Supreme] Court's decisions but unreasonably
applies that principle to the facts of the prisoner's
case.'” Bowersox, 892 F.3d at 983 (quoting
Worthington, 631 F.3d at 495). 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 ...