United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf, Senior United States District Judge
matter is before the court on Petitioner Eric McCain's
(“McCain”) Petition for Writ of Habeas Corpus.
(Filing No. 1.) For the reasons that follow,
McCain's habeas petition is denied and the case is
dismissed with prejudice.
and condensed, and as set forth in the court's initial
review order (filing no. 5), McCain asserted the
following claim that was potentially cognizable in this
court: McCain's sentence violates the Eighth
Amendment's ban on cruel and unusual punishment because
he was a minor at the time of his offense and he received a
de facto life sentence without a finding of irreparable
corruption. (Filing No. 5 at CM/ECF p. 1.)
Conviction and Sentence
facts underlying McCain's offense are summarized as
follows. At 2:30 a.m. on July 2, 1990, McCain left the
Gothenburg Police Department after Officers Haas and Raffety
cited him for criminal mischief and theft of property.
(Filing No. 12 at CM/ECF pp. 19,
153-57; Filing No. 14-18 at CM/ECF p.
60.) McCain told his friends that he was going to kill a
police officer and retrieved a rifle from his residence.
(Filing No. 12 at CM/ECF pp. 20-21; Filing No.
14-18 at CM/ECF pp. 60-61.) McCain returned to the
Gothenburg Police Department at approximately 3:10 a.m. and
asked dispatch, “Is there a cop still here?”
(Filing No. 14-18 at CM/ECF pp. 58-61.) The dispatch
announced over the intercom that McCain was there.
(Filing No. 14-18 at CM/ECF p. 61.) Officer Haas
responded, and McCain shot him in the abdomen. (Filing
No. 14-18 at CM/ECF pp. 59-61.) Officer Haas died a
short time later from his injuries. (Filing No. 14-18 at
CM/ECF p. 60.) McCain fled the scene and was later
arrested in a cornfield northeast of Gothenburg. (Filing
No. 14-18 at CM/ECF p. 61.) At the time of the offense,
McCain was seventeen years old (born on May 11, 1973).
(Filing No. 14-18 at CM/ECF p. 71.)
12, 1990, McCain was charged by information in the Dawson
County District Court with first degree (premeditated) murder
and use of a firearm to commit a felony. (Filing No.
14-17 at CM/ECF pp. 1-3.) On October 16, 1990, McCain
pleaded guilty to first degree (premeditated) murder and the
use of a firearm count was dismissed. (Filing No. 14-18
at CM/ECF pp. 28-40.) On November 9, 1990, McCain was
sentenced to life imprisonment. (Filing No. 14-18 at
CM/ECF p. 50.)
did not file a direct appeal.
2012, the United States Supreme Court held that “the
Eighth Amendment forbids a sentencing scheme that mandates
life in prison without possibility of parole for juvenile
offenders.” Miller v. Alabama, 567 U.S. 460,
479 (2012). The Court expressly declined to consider the
“alternative argument that the Eighth Amendment
requires a categorical bar on life without parole for
juveniles.” Id. The Court nevertheless opined
that it expected such sentences would be “uncommon,
” particularly because of “the great difficulty .
. . of distinguishing at this early age between ‘the
juvenile offender whose crime reflects unfortunate yet
transient immaturity, and the rare juvenile offender whose
crime reflects irreparable corruption.'”
Id. at 479-80 (quoting Roper v. Simmons,
543 U.S. 551, 573 (2005), and Graham v. Florida, 560
U.S. 48, 68 (2010)).
the Nebraska Supreme Court determined that Miller
applied retroactively, see State v. Mantich, 287
Neb. 320, 842 N.W.2d 716, 731 (2014), the state district
court granted McCain's request for postconviction relief
and ordered resentencing. (Filing No. 14-17 at CM/ECF pp.
McCain's resentencing, the United States Supreme Court
decided Montgomery v. Louisiana, 577 U.S.___, 136
S.Ct. 718 (2016), and Tatum v. Arizona, 580 U.S.___,
137 S.Ct. 11 (2016). In Montgomery, the Supreme
Court held that its decision in Miller announced a
new, substantive constitutional rule that was retroactive on
state collateral review. Montgomery, 577 U.S. at
____, 136 S.Ct. at 737. Montgomery quoted
Miller, that “life without parole is excessive
for all but the rare juvenile offender whose crime reflects
irreparable corruption.” Montgomery, 577 U.S.
at ___, 136 S.Ct. at 734 (quoting Miller, 567 U.S.
at 479-80) (internal quotation marks omitted). More recently,
in Tatum, the Supreme Court repeated this quote from
Montgomery when it remanded several first-degree
murder cases for reconsideration. The cases involved
juveniles who were sentenced to life imprisonment without
parole, were resentenced after Miller, and, upon
resentencing, were again given life imprisonment without
parole. The Court in Tatum vacated all the life
sentences and directed that upon remand, the sentencing
courts should “address[ ] the question Miller
and Montgomery require a sentencer to ask: whether
the [juvenile] was among the very rarest of juvenile
offenders, those whose crimes reflect permanent
incorrigibility” as opposed to those whose “crime
reflects unfortunate yet transient immaturity.”
Tatum, 580 U.S.___, 137 S.Ct. at 12 (quoting
Montgomery, 577 U.S. at___, 136 S.Ct. at 734)
(internal quotation marks omitted).
state district court held a comprehensive mitigation hearing
before resentencing. (Filing No. 14-19; Filing
No. 14-20.) McCain offered into evidence multiple
exhibits, including: his original presentence investigation
report; his initial classification report and annual
classification reviews from the Nebraska Department of
Correctional Services (‘NDCS”); misconduct
reports, mental health records, personalized plan, academic
transcripts and certificates from the NDCS; a letter from the
original sentencing judge; additional letters supporting
McCain's capacity for change; job reports from his
employer, Cornhusker State Industries; a report from Dr. Kirk
Newring, a licensed psychologist who evaluated McCain in
preparation for resentencing; appellate briefs in
Roper and Miller; and life expectancy
information, including life expectancy for white males in the
United States and life expectancy for juveniles sentenced to
life without parole. (Filing No. 14-19 at CM/ECF pp.
2-3; Filing No. 14-20 at CM/ECF pp. 73-84.)
McCain also offered live testimony from Carl Purcell, a shop
supervisor at Cornhusker State Industries; Terry Thacker, a
prison ministry worker; Dennis McCain, his father; and Dr.
Newring. (Filing No. 14-19 at CM/ECF pp. 7-190;
Filing No. 14-20 at CM/ECF pp. 3-73.) At the
conclusion of the hearing, the state district court set the
matter for resentencing. (Filing No. 14-20 at CM/ECF p.
resentencing hearing was held on November 3, 2016.
(Filing No. 14-20 at CM/ECF pp. 90-144.) Upon
considering the presentence investigation report and
supplements thereto, the briefs submitted by counsel,
McCain's mitigation evidence, arguments from counsel,
McCain's allocution, and the resentencing factors set
forth in Neb. Rev. Stat. § 28-105.02, the judge credited
McCain's efforts at rehabilitation, his lack of a violent
criminal record, and the science indicating that McCain's
brain development was not fully formed at the time he
committed the offense, but balanced those factors against the
nature of his offense-especially McCain's premeditation
and expressed desire to kill a police officer months before
he shot Officer Haas- and his “excellent” family
environment. (Filing No. 14-20 at CM/ECF pp.
131-41.) The judge declined to resentence McCain to life
imprisonment and instead sentenced him to not less than 80
years' imprisonment nor more than 99 years'
imprisonment, with credit for 9, 621 days already ...