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McCain v. Frakes

United States District Court, D. Nebraska

May 13, 2019

ERIC MCCAIN, Petitioner,
v.
SCOTT R. FRAKES, N.D.C.S Director; Respondent.

          MEMORANDUM AND ORDER

          Richard G. Kopf, Senior United States District Judge

         This 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.

         I. CLAIM

         Summarized 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.)

         II. BACKGROUND

         A. Conviction and Sentence

         The 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;[1] 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.)

         On July 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.)

         McCain did not file a direct appeal.

         B. Postconviction Action

         In 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)).[2]

         After 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. 21-28.)

         Before 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).

         C. Resentencing

         The 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. 86.)

         A 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 ...


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