Golka v. Houston

Filing 44

MEMORANDUM OPINION- A separate order will be entered in accordance with this memorandum opinion. Ordered by Senior Judge Lyle E. Strom. (MKR)

IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEBRASKA
JASON L. GOLKA,

)
)
Petitioner,
)
)
v.
)
)
ROBERT HOUSTON,
)
)
Respondent.
)
______________________________)

4:11CV3078

MEMORANDUM OPINION

This matter is before the Court on petitioner Jason L.
Golka’s (“Golka”) Amended Petition for Writ of Habeas Corpus
(“Amended Petition”)1 (Filing No. 40).

Respondent filed an

Answer to Golka’s original Petition (Filing No. 8), Brief in
support of Answer to Petition (Filing No. 9), Reply Brief in
response to Golka’s Amended Petition (Filing No. 43), and
relevant State Court Records (Filing No. 7).

Golka filed a Brief

in support of his Amended Petition (Filing No. 41).

This matter

is therefore deemed fully submitted.
In his Amended Petition, Golka asserts the following
claims:
Claim One:

1

Petitioner was denied due process of law
and the effective assistance of counsel
in violation of the Fifth, Sixth and
Fourteenth Amendments because he was
sentenced to consecutive life sentences
without receiving a pre-sentence

Golka filed his original petition with the Court on May
23, 2011 (Filing No. 1). The Court granted him permission to
amend on February 2, 2012 (Filing No. 32).

investigation, a right that petitioner
did not waive.
Claim Two:

Petitioner was denied the effective
assistance of counsel in violation of
the Sixth Amendment and denied due
process of law in violation of the Fifth
and Fourteenth Amendments because his
counsel improperly advised petitioner to
waive his right to a jury trial and to
plead guilty.

Claim Three:

Petitioner was denied due process of law
in violation of the Fourteenth Amendment
and denied effective assistance of
counsel in violation of the Sixth and
Fourteenth Amendments because when his
guilty plea was accepted, he was not
informed of the nature of the charges
against him and not informed that he was
presumed innocent until prove guilty.

Claim Four:

Petitioner was sentenced in violation of
the Eighth and Fourteenth Amendments
because he was sentenced to life in
prison for crimes he committed when he
was 17 years old.

(Filing No. 40).
I. Background
On July 13, 2005, Golka was convicted, following his
guilty pleas in the District Court of Sarpy County, Nebraska, of
two counts of first degree murder (Filing No. 7-12 at pp. 7-13).
The Sarpy County District Court thereafter sentenced Golka to
serve a prison term of life imprisonment without parole (Filing
No. 7-17 at pp. 17-18).
Golka timely filed a direct appeal to the Nebraska
Supreme Court in which he alleged that the state district court

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erred in (1) finding that his waiver of the right to a
presentence investigation was knowingly, voluntarily, and
intelligently made; (2) in overruling his challenge to the
constitutionality of Neb. Rev. Stat. § 28-105; and (3) in
imposing excessive sentences (Filing No. 7-5 at p. 6).

The

Nebraska Supreme Court affirmed both counts of first degree
murder, but vacated the sentences of “life imprisonment without
parole” and remanded the case to the district court with
directions to consider the presentence investigation report and
to resentence Golka, finding his prior sentences unconstitutional
(Filing No. 7-1 at pp. 5-6).
On December 1, 2006, the Sarpy County District Court,
upon remand, resentenced Golka to two consecutive life terms of
imprisonment (Filing No. 7-16 at pp. 10-11).

Golka never

appealed from his resentencing (Filing No. 7-2 at p. 7).

Golka

was represented by the same counsel at trial, direct appeal, and
resentencing (Filing No. 7-2 at p. 7).
On November 8, 2007, Golka filed a pro se motion for
postconviction relief with the Sarpy County District Court, but
later, on November 26, 2008, filed an amended motion for
postconviction relief through counsel alleging (1) ineffective
assistance of trial counsel regarding advice to waive a jury
trial; (2) ineffective assistance of trial counsel regarding
advice to accept the plea agreement and plead guilty; (3)

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ineffective assistance of trial counsel regarding failure to
advise of alternate offenses and possible defenses; (4)
ineffective assistance of direct appeal counsel for failing to
assign as error the failure of the state district court to inform
him of the nature of the charges and his right to be presumed
innocent; and (5) cruel and unusual punishment regarding his
sentences (Filing No. 7-10 at pp. 33-60).

On April 20, 2010, the

Sarpy County District Court denied all of Golka’s claims without
an evidentiary hearing.

(Id. at pp. 66-71.)

Golka appealed to the Nebraska Supreme Court the order
of the state district court, alleging that the state district
court erred in denying him postconviction relief without an
evidentiary hearing on his claims (Filing No. 7-7 at p. 6).

On

April 22, 2011, the Nebraska Supreme Court rejected all of
Golka’s claims and found that the state district court did not
err when it denied Golka’s amended motion for postconviction
relief without an evidentiary hearing (Filing No. 7-2 at pp. 117).
Golka filed his pro se, original petition in this Court
on May 23, 2011 (Filing No. 1).

Later, Golka retained counsel

and was granted leave to amend his petition (Filing No. 32).
Golka’s Amended Petition was filed with this Court on February
17, 2012 (Filing No. 40).

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II. Standards of Review
A.

Standards for Procedural Default

As set forth in 28 U.S.C. § 2254(b)(1):
An application for a writ of habeas
corpus on behalf of a person in
custody pursuant to the judgment of
a State court shall not be granted
unless it appears that –(A)

the applicant has exhausted
the remedies available in the
courts of the State; or

(B)

(i)

there is an absence of
available State
corrective process; or

(ii) circumstances exist that
render such process
ineffective to protect
the rights of the
applicant.
28 U.S.C. § 2254(b)(1).
The United States Supreme Court has explained the
habeas exhaustion requirement as follows:
Because the exhaustion doctrine is
designed to give the state courts a
full and fair opportunity to
resolve federal constitutional
claims before those claims are
presented to the federal courts, we
conclude that state prisoners must
give the state courts one full
opportunity to resolve any
constitutional issues by invoking
one complete round of the State’s
established appellate review
process.

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O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).

A state

prisoner must therefore “fairly present” the substance of each
federal constitutional claim to the state courts before seeking
federal habeas relief.

Id. at 844, 848.

In Nebraska, “one

complete round” ordinarily means that each § 2254 claim must have
been presented in an appeal to the Nebraska Court of Appeals, and
then in a petition for further review to the Nebraska Supreme
Court if the Court of Appeals rules against the petitioner.

See

Akins v. Kenney, 410 F.3d 451, 454-55 (8th Cir. 2005).
In addition, “fair presentation” of a habeas claim in
state court means that a petitioner “must have referred to a
specific federal constitutional right, a particular
constitutional provision, a federal constitutional case, or a
state case raising a pertinent federal constitutional issue in a
claim before the state courts.”

Carney v. Fabian, 487 F.3d 1094,

1096 (8th Cir. 2007) (quotation omitted).

Thus, where a

petitioner argued in the state courts only that “the trial court
misapplied . . . state statutes and case law,” the claim is not
properly raised and may be procedurally defaulted.

Id.; see also

Rucker v. Norris, 563 F.3d 766, 771 (8th Cir. 2009) (finding
claim was procedurally barred where the petitioner failed to
raise his federal due process claim and “cited no federal
authority” in the state courts).

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Moreover, where:
no state court remedy is available
for the unexhausted claim -- that
is, if resort to the state courts
would be futile -- then the
exhaustion requirement in § 2254(b)
is satisfied, but the failure to
exhaust ‘provides an independent
and adequate state-law ground for
the conviction and sentence, and
thus prevents federal habeas corpus
review of the defaulted claim,
unless the petitioner can
demonstrate cause and prejudice for
the default.
Armstrong v. Iowa, 418 F.3d 924, 926 (8th Cir. 2005) (quoting
Gray v. Netherland, 518 U.S. 152, 162 (1996)).

Stated another

way, if a claim has not been presented to the Nebraska appellate
courts and is now barred from presentation, the claim is
procedurally defaulted, not unexhausted.

Akins, 410 F.3d at 455

n. 1.
Under Nebraska law, “[a] motion for postconviction
relief cannot be used to secure review of issues which were or
could have been litigated on direct appeal.”

Hall v. State, 646

N.W.2d 572, 579 (Neb. 2002) (citation omitted).

In such

circumstances, a federal habeas court is “precluded from reaching
the merits of the claim.”

Shaddy v. Clarke, 890 F.2d 1016, 1018

(8th Cir. 1989); see also Greer v. Minnesota, 493 F.3d 952, 957
(8th Cir. 2007) (reiterating that “when a state court declined to
address a prisoner’s federal claims because the prisoner had
failed to meet a state procedural requirement,” federal habeas is
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barred because “[i]n such instances, the state prisoner forfeits
his right to present his federal claim through a federal habeas
corpus petition”) (quotations omitted).

Where a claim has been

procedurally defaulted, however, a petitioner is entitled to an
opportunity to demonstrate cause and prejudice to excuse the
default.

Akins, 410 F.3d at 455 n. 1.
To excuse a procedural default, a petitioner must

demonstrate either cause for the default and actual prejudice as
a result of the alleged violation of federal law.

Id.

Although

there is no precise definition of what constitutes cause and
prejudice, “the existence of cause for a procedural default must
ordinarily turn on whether the prisoner can show that some
objective factor external to the defense impeded counsel’s
efforts to comply with the State’s procedural rule.”

Strickler

v. Greene, 527 U.S. 263, 283 n. 24 (1999); see also Bell v.
Attorney Gen. of the State of Iowa, 474 F.3d 558, 561 (8th Cir.
2007) (“A cause is sufficient to excuse procedural default when
it is external to the petitioner, and not attributable to the
petitioner.”

(citation omitted)).

B. Standards for Review of Habeas Claims on the Merits
When a state court has adjudicated a habeas
petitioner’s claim on the merits, there is a very limited and
extremely deferential standard of review both as to the facts and
the law.

See 28 U.S.C. § 2254(d).

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With regard to the deference

owed to factual findings of a state court’s decision, a federal
court is bound by those findings unless the state court made 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)(2).

In addition, 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).
Further, section 2254(d)(1) states that a federal court
may not grant a writ of habeas corpus unless the state court’s
decision “was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by
the Supreme Court of the United States.”

28 U.S.C. § 2254(d)(1).

Further, “it is not enough for [the court] to conclude that, in
[its] independent judgment, [it] 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) (citation omitted).
Put simply, “[i]f this standard is difficult to meet,
that is because it was meant to be.”
U.S. ___, 131 S. Ct. 770, 786 (2011).

Harrington v. Richter, ___
The deference due to state

court decisions “preserves authority to issue the writ in cases
where there is no possibility fairminded jurists could disagree

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that the state court’s decision conflicts with [Supreme Court]
precedents.”

Id.

In short, “[i]t bears repeating that even a

strong case for relief does not mean the state court’s contrary
conclusion was unreasonable.”

Id.

This high degree of deference

only applies where a claim has been adjudicated on the merits by
the state court.

See Brown v. Luebbers, 371 F.3d 458, 460-61

(8th Cir. 2004) (“[A]s the language of the statute makes clear,
there is a condition precedent that must be satisfied before we
can apply the deferential AEDPA standard to [the petitioner’s]
claim.

The claim must have been ‘adjudicated on the merits’ in

state court.”).
The Eighth Circuit has clarified what it means for a
claim to be adjudicated on the merits, finding that:
AEDPA’s requirement that a
petitioner’s claim be adjudicated
on the merits by a state court is
not an entitlement to a wellarticulated or even a correct
decision by a state court.
. . . Accordingly, the
postconviction trial court’s
discussion of counsel’s performance
–- combined with its express
determination that the ineffectiveassistance claim as a whole lacked
merit –- plainly suffices as an
adjudication on the merits under
AEDPA.
Worthington v. Roper, 631 F.3d 487, 496-97 (8th Cir. 2011)
(quotations and citations omitted).

The court also determined

that a federal district court reviewing a habeas claim under

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AEDPA must “look through” the state court opinions and “apply
AEDPA review to the ‘last reasoned decision’ of the state
courts.”

Id.

A district court should do “so regardless of

whether the affirmance was reasoned as to some issues or was a
summary denial of all claims.”
C.

Id. (citation omitted).

The Strickland Standard

Claims of ineffective assistance of counsel are
reviewed under the two-pronged standard of Strickland v.
Washington, 466 U.S. 668, 694 (1984).

Strickland requires that

the petitioner demonstrate both that his counsel’s performance
was deficient, and that such deficient performance prejudiced the
petitioner’s defense.

Id. at 687; see also Bryson v. United

States, 268 F.3d 560, 561 (8th Cir. 2001).
The first prong of the Strickland test requires the
petitioner to demonstrate that his attorney failed to provide
“reasonably effective assistance”.
687-88.

Strickland, 466 U.S. at

In conducting such a review the courts “indulge a strong

presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.”

Id. at 689.

The second

prong requires the petitioner to demonstrate “a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.”

Id. at 694;

see also Hubbeling v. United States, 288 F.3d 363, 365 (8th Cir.
2002).

A court need not address the reasonableness of the
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attorney’s skills and diligence if the movant cannot prove
prejudice under the second prong of this test.

United States v.

Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996) (quoting Cheek v.
United States, 858 F.2d 1330, 1336 (8th

Cir. 1988)).

In addition, the Supreme Court has emphasized that the
deference due to the state courts applies with vigor to decisions
involving ineffective assistance of counsel claims.

Knowles v.

Mirzayance, 556 U.S. 111 (2009) (reversing the Ninth Circuit
Court of Appeals and holding that the decision of the California
Court of Appeals, that the defendant was not deprived of
effective assistance of counsel when his attorney recommended
withdrawing his insanity defense during second phase of trial,
was not contrary to or an unreasonable application of clearly
established federal law; also concluding, among other things,
that there was no reasonable probability that, but for counsel’s
alleged unprofessional error, the result of the proceeding would
have been different).
In Knowles, the Justices stressed that under the
Strickland standard, the state courts have a great deal of
“latitude” and that “leeway” presents a “substantially higher
threshold” for a federal habeas petitioner to overcome.
The question “is not whether a
federal court believes the state
court’s determination” under the
Strickland standard “was incorrect
but whether that determination was
unreasonable -- a substantially
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Thus:

higher threshold.” And, because
the Strickland standard is a
general standard, a state court has
even more latitude to reasonably
determine that a defendant has not
satisfied that standard.
Id. at 123 (citations omitted).
III. Analysis
A. Claim One
Golka claims that he was denied due process of law and
the effective assistance of counsel in violation of the Fifth,
Sixth and Fourteenth Amendments because he was sentenced to
consecutive life sentences without receiving a presentence
investigation, a right that Golka claims he did not waive
(Filing No. 40 at p. 1).

After Golka was resentenced by the

Sarpy County District Court with directions from the Nebraska
Supreme Court to consider presentence investigation report, Golka
did not appeal his new sentence, and he did not raise this claim
in his amended postconviction motion before the Sarpy County
District Court or in his brief on postconviction appeal to the
Nebraska Supreme Court.

Thus, Golka has not exhausted his

remedies available in the state courts on this claim.

Although

Golka disagrees with this contention, he has failed to argue why
this procedural default should be excused.
claim is procedurally defaulted.

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The Court finds this

B. Claim Two
Golka claims that he was denied effective assistance of
counsel in violation of the Sixth Amendment and was denied due
process of law in violation of the Fifth and Fourteenth
Amendments because his counsel improperly advised him to waive
his right to a jury trial and to plead guilty (Filing No. 40 at
pp. 1-2).

Golka did not raise the federal due process portion of

this claim on direct appeal or on his postconviction motion for
relief.

Thus, Golka has not exhausted his remedies available in

the state courts on the federal due process portion of this
claim.

Although Golka disagrees with this contention, he has

failed to argue why this procedural default should be excused.
The Court finds the federal due process portion of this claim is
procedurally defaulted.
Furthermore, the Court finds Golka’s ineffective
assistance of counsel claims are without merit.

Golka’s counsel

did not improperly advise him to waive his right to a jury trial
and to plead guilty.

The Nebraska Supreme Court found:

There is nothing in the
postconviction motion or record
which suggests that the trial
counsel interfered with Golka’s
freedom to decide to waive a jury
trial, and the colloquy in the
court at the jury trial waiver
hearing is to the contrary. The
alleged statements of trial counsel
regarding the relative merits of
trying a case to the court as
opposed to a jury were commonplace
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considerations and did not
constitute unreasonable advice so
as to vitiate the knowing and
intelligent waiver of the right to
a jury trial.
Filing No. 7-2 at pp. 9.

This Court has conducted its own review

of the record in this case, and is in agreement with the Nebraska
Supreme Court.

Nothing in the record suggests Golka’s counsel

interfered with Golka’s freedom to decide to waive a jury trial
or that Golka’s counsel improperly advised him on the matter.
The Nebraska Supreme Court similarly found:
As reflected in the record of the
plea hearing, Golka specifically
denied that any promises had been
made to induce his plea and he
indicated that he was not subjected
to any threats, promises, or other
inducements. He also expressed his
understanding that life
imprisonment was the maximum
possible penalty which the court
could impose . . . . Golka claims
that he pled guilty based on
counsel’s promise of parole and
that but for that advice, he would
have insisted on going to trial
. . . . The records and files
contradict this claim and
affirmatively show that he is not
entitled to relief.
Filing No. 7-2 at pg. 13.

The Court is satisfied based upon the

records of this case that Golka’s counsel did not improperly
advise him to plead guilty, as Golka testified before the
sentencing Court.

Golka has failed to establish his counsel’s

performance was deficient.

Thus, Golka was not denied effective

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assistance of counsel in violation of the Sixth Amendment
regarding his decision to waive his right to a jury trial and to
plead guilty.
C. Claim Three
Golka claims that he was denied due process of law in
violation of the Fourteenth Amendment and denied effective
assistance of appellate counsel in violation of the Sixth and
Fourteenth Amendments because when his guilty plea was accepted,
he was not informed of the nature of the charges against him and
not informed that he was presumed innocent until proven guilty,
and his appellate counsel did not raise these issues on appeal
(Filing No. 40 at p. 2).

Golka did not present the due process

portion of this claim on direct appeal or on his postconviction
motion for relief.

Thus, Golka has not exhausted his remedies

available in the state courts on the federal due process portion
of this claim.

Although Golka disagrees with this contention, he

has failed to argue why this procedural default should be
excused.

The Court finds the federal due process portion of this

claim is procedurally defaulted.
As to Golka’s claim of ineffective assistance of
appellate counsel, the Nebraska Supreme Court found,
We believe that generally, where
the defendant is properly advised
of his rights during the
proceedings, the plea is a
voluntary and intelligent choice

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. . . . Taking the arraignment and
the plea hearing together, the
record shows that Golka was
properly advised of the nature of
the charges and his understanding
thereof.
With respect to the presumption of
innocence, at the arraignment,
Golka was advised that he was
presumed to be innocent and that
this “presumption of innocence
continues throughout the proceeding
unless and until the State meets
its burden of proof” . . . .
Because Golka received the proper
necessary advisements, appellate
counsel did not fail to raise
issues related thereto on appeal.”
Filing No. 7-2 at p. 16.
Thus, as the record reflects Golka was aware of both
the nature of his charges and that he was deemed innocent until
proven guilty, his counsel did not err in failing to address such
issues on appeal.

This Court is satisfied that the record of

this case shows there is no merit to Golka’s claim of ineffective
assistance of appellate counsel.

Golka has failed to establish

his appellate counsel’s performance was deficient.

Thus, Golka

was not denied effective assistance of appellate counsel in
violation of the Sixth Amendment regarding counsel’s assignment
of errors on appeal.
D. Claim Four
Golka claims that he was sentenced in violation of the
Eighth and Fourteenth Amendments because he was sentenced to life

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in prison for crimes he committed when he was seventeen years-old
(Filing No. 40 at p. 2).

The Nebraska Supreme Court rejected

this claim on state procedural grounds:
[W]e believe that Golka’s
allegations are conclusory and that
he has alleged no facts in his
postconviction motion upon which we
could conclude that his life
sentences for first degree murders
constitute cruel and unusual
punishment under the federal or
state constitution. It is
axiomatic that if a motion for
postconviction relief alleges only
conclusions of fact or law, no
evidentiary hearing is required.
State v. McGhee, 280 Neb. 588, 787
N.W.2d 700 (2010). An evidentiary
hearing was not warranted on this
issue, and the district court did
not err when it so ruled.
(Filing No. 7-2 at p. 17).

That the Nebraska Supreme Court also

addressed Graham v. Florida, 130 S.Ct. 2011 (2011) and its
progeny, as Golka points out, is of no relevance.

See Harris v.

Reed, 489 U.S. 255, 264 n. 10 (1989) (noting that a state court
may address the merits in an alternative holding without fear of
federal habeas review when the state court explicitly invokes a
state procedural bar as a separate basis for decision).

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Thus,

Claim Four is procedurally defaulted.

A separate order will be

entered in accordance with this memorandum opinion.
DATED this 9th day of July, 2012.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

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