Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Ware v. Frakes

United States District Court, D. Nebraska

July 19, 2018

DAVID WARE, Petitioner,
v.
SCOTT R. FRAKES, Respondent.

          MEMORANDUM AND ORDER

          LAURIE SMITH CAMP, CHIEF UNITED STATES DISTRICT JUDGE

         This 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.

         BACKGROUND

         On 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.

         On 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 (Neb. 2015).

         Ware 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.

         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 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).

         “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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.