Charles v. Hansen

Filing 7

MEMORANDUM AND ORDER that the petition for writ of habeas corpus (filing no. 1 ) is denied with prejudice. No certificate of appealability will be issued. A separate judgment will be issued. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (LAC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JEFFREY CHARLES,
Petitioner,
v.
BRAD HANSEN,
Respondent.

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4:18CV3006

MEMORANDUM AND ORDER

Jeffrey Charles (Charles) has filed a petition seeking a writ of habeas corpus. I
now conduct an initial review1 of that petition and dismiss it with prejudice. No
certificate of appealability will be granted.
Charles, who is serving 70 to 140 years in prison2, attacks Nebraska’s habitual
criminal statute, Neb. Rev. Stat. § 29-2221 (West). He claims that the statute violates the
Apprendi line of cases. His claim has no merit.
Apprendi itself recognized that proof of prior conviction is an exception to the rule
that facts that make the sentence go up because of a statutory enhancement must be
proven beyond a reasonable doubt to a jury. Apprendi v. New Jersey, 530 U.S. 466, 490,
(2000). And as the Nebraska Court of Appeals recognized when denying Charles’ postconviction appeal, nothing has changed:

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“If it plainly appears from the petition and any attached exhibits that the
petitioner is not entitled to relief in the district court, the judge must dismiss the petition
and direct the clerk to notify the petitioner.” Rule 4 of the Rules Governing Section 2254
Cases in the United States District Court.
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I take judicial notice of state court records available online to this court. See
Stutzka v. McCarville, 420 F.3d 757, 761, n.2 (8th Cir. 2005) (court may take judicial
notice of public records); Federal Rule of Evidence 201 (providing for judicial notice of
adjudicative facts).

State’s motion for summary affirmance granted. Recent case relied upon by
appellant, Hurst v. Florida, 136 S. Ct. 616, 193 L. Ed. 2d 504 (2016), does not
impact prior holdings by Nebraska Supreme Court that the determination of
whether a defendant has prior convictions that may increase the penalty for a
crime beyond the prescribed statutory maximum is not a determination that must
be made by the jury. See State v. Johnson, 290 Neb. 369, 859 N.W.2d 877
(2015); State v. Hurbenca, 266 Neb. 853, 669 N.W.2d 668 (2003).
State v. Charles, A17-305 (Neb. Ct. App., August 1, 2017), petition for further
review denied December 22, 2017.
Lastly, a petitioner cannot appeal an adverse ruling on his petition for writ of
habeas corpus under § 2254 unless he is granted a certificate of appealability. 28 U.S.C.
§ 2253(c)(1); 28 U.S.C. § 2253(c)(2); Fed. R. App. P. 22(b)(1). The standards for
certificates (1) where the district court reaches the merits or (2) where the district court
rules on procedural grounds are set forth in Slack v. McDaniel, 529 U.S. 473, 484-485
(2000). I have applied the appropriate standard and determined that Petitioner is not
entitled to a certificate of appealability.
IT IS ORDERED that:
1.

The petition for writ of habeas corpus (filing no. 1) is denied with
prejudice.

2.

No certificate of appealability will be issued.

3.

A separate judgment will be issued.

DATED this 2nd day of February, 2018.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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