Longson v. State of Nebraska

Filing 4

MEMORANDUM AND ORDER - The petition for writ of habeas corpus 1 and the motion for stay [3 ] are denied with prejudice. No certificate of appealability will be issued. A separate judgment will be issued. The Clerk shall e-mail a copy of this Mem orandum and Order and Judgment immediately upon filing to Petitioner at the e-mail address shown on the motion for stay, that is, [e-mail]. The Clerk shall mail a copy of this Memorandum and Order to Petitioner by United States Mail. Ordered by Senior Judge Richard G. Kopf. (Copy mailed and e-mailed to pro se party) (CS)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
RONALD C. LONGSON,
Petitioner,
v.
STATE OF NEBRASKA,
Respondent.

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4:18CV3036

MEMORANDUM AND ORDER

Because Petitioner is set to serve his two-day jail sanctions for a violation of his
conditions of probation this coming Saturday and because he seeks a stay, I have
expedited this initial review1 of Petitioner’s habeas corpus petition. I now deny the
petition and stay motion with prejudice. No certificate of appealability will be issued.
Claims
Condensed and summarized, Longson claims that the District Court of
Lancaster County, Nebraska lacked jurisdiction to impose a two-day jail sanctions for
failing to show up for a urine test. He claims that there was no jurisdiction because the
state district court did not have the rules that governed the transfer of his supervision
to Nebraska from Montana. He also claims that no prosecutor was present when
sanctions were imposed and the state district judge and the probation officer handled
the matter alone thus violating his due process rights. Longson does not dispute that

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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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he was present in court, testified, and was represented by counsel at the sanctions
hearing.
Judicial Notice
As an introductory matter, 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).
I also take judicial notice of the Interstate Compact for Adult Offender
Supervision (ICAOS) which has the force of federal law.2 ICAOS Bench Book for
Judges and Court Personnel, at p. 7 (2017 Edition). The ICAOS authorizes the
adoption of rules by the Interstate Commission for Adult Offender Supervision. These
rules carry the weight of federal law, and I take judicial notice of them as well. Id.
Nebraska is a member of the Compact.
Background
The background of this case may be found in the Nebraska Supreme Court
opinion affirming the two-day jail sanctions which is at the heart of this dispute, State
v. Longson, S-17-0231 (Dec. 21, 2017)3 (since Longson’s challenge to the sanctions
depended upon the ICAOS rules and Longson failed to include them in the record, the

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All references in this Memorandum and Order to ICAOS, the Bench Book, the
Rules adopted by the Commission, and other information can be found by accessing
https://www.interstatecompact.org/. I take judicial notice of all the information found
therein.
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The opinion was not published. But the opinion, briefs, and record are
available through SCCALES and searching by the case number S-17-0231.
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decision appealed from would be affirmed) and the related record and briefs filed with
that court.
In October 2015, Longson was placed on probation in Montana for a felony
theft offense. The record does not contain an actual copy of the court order or
judgment for his conviction and sentence, but the documentation in the record
reflected that he was sentenced to 1 year, 5 months and 7 days of probation. His
probation term began on October 13, 2015 and was scheduled to end on March 20,
2017. None of these details are disputed.
In November 2015, a month after his probation term began, Longson moved
to Nebraska and signed a Nebraska Interstate Compact Offender Agreement, agreeing
that he would continue be subject to probation in Nebraska. The terms of his probation
are set forth in the Compact Agreement and an accompanying Courtesy Supervision
Guidelines Interstate Transfer. Among other conditions, the terms of his probation
provided that he would be subject to administrative and custodial sanctions, including
but not limited to “custodial sanctions of 1-30 days detention, of up to 90 total days
in duration.” None of these details are in dispute.
In February 2017, Longson’s probation officer in Nebraska, Jeff Hamilton of
the Nebraska Probation Office District #3A, filed with the District Court of Lancaster
County, Nebraska a “Request for Imposition of Custodial Sanction” as well as an
“Affidavit in Support of Imposition of Custodial Sanction.” The affidavit states that
Longson had been administratively sanctioned several times for various reasons, such
as missing drug and alcohol testing or failing to pay fines, and had continued to miss
further testing appointments despite such sanctions. The affidavit therefore requested
that the court impose “custodial sanctions” of 2 days in jail.
The local prosecutor was granted leave to withdraw because he was uncertain
what jurisdiction his office had over the matter since the underlying sentence came
from Montana. Ultimately, the case proceeded without a prosecutor to a probation
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violation hearing with the district court judge, the probation officer, the defendant and
his counsel present.
The court asked Longson’s counsel how counsel wished to proceed and
Longson’s counsel requested that the case be dismissed due to a lack of jurisdiction.
Longson’s counsel argued that while the probation office in Nebraska had authority
to supervise and impose “administrative” sanctions upon Longson, the court lacked
authority to impose “custodial” sanctions in the matter because that right remained
exclusively with the State of Montana.
The district court overruled Longson’s motion and indicated that it read Neb.
Rev. Stat. § 29-2266.03 to say that it had authority to impose custodial sanctions, to
proceed without a prosecutor and, relatedly, to receive the exhibits that had been
provided to the court by Longson’s probation officer. Longson’s counsel objected to
the receipt of the exhibits and argued that it was improper for the court to do so given
that the exhibits were not offered by a party. The court overruled this motion as well
and received the three exhibits in question, which included three of the documents
discussed above: the Probation Officer’s Affidavit in Support of Imposition of
Custodial Sanctions (Exhibit 1), the Courtesy Supervision Guidelines Interstate
Transfer (Exhibit 2), and the Nebraska Interstate Compact Offender Agreement
(Exhibit 3).
Longson himself also testified at the hearing. His testimony, in summary, was
that he did not dispute he violated the terms of his probation by missing several urine
analysis tests, but he was unable to make those appointments because he had to watch
his kids at those times and could not line up a babysitter. He testified that his wife has
since adjusted her work schedule which has allowed him to attend all of his
appointments since the ones he missed, and he did not anticipate missing any more
appointments.

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Based on this evidence, the district court found the probation violation was
proved by a preponderance of the evidence. It ordered Longson to serve 2 days in the
Lancaster County Jail, as proposed by the probation office. An appeal bond was
posted and Longson appealed. As noted above, the Nebraska Supreme Court affirmed
the imposition of the two-day jail sanctions. Longson is scheduled to serve his
sentence commencing Saturday, March 24, 2018, at 10:00 A.M.
Discussion
First, there is no question but that Nebraska law allows for the imposition of
custodial sanctions for probation violations. “After a custodial sanction hearing, if the
court determines that a custodial sanction should be imposed, the court shall issue a
commitment order accordingly.” Neb. Rev. Stat. § 29-2266.03 (West).
Second, nowhere have I found any requirement that a prosecutor be present at
a custodial sanctions hearing under Nebraska law or ICAOS and related rules.
Thirdly, Nebraska law requires that the “court shall receive the affidavit and
report of the probation officer as evidence and may receive additional affidavits and
reports related to the requested sanction or sanctions.” Id. (Emphasis added).
Fourth, there is no question but that custodial sanctions of short duration
imposed by a receiving state are authorized under ICAOS and the rules promulgated
thereunder. For example, ICAOS Rule 4.101, pertaining to the manner and degree of
supervision in a receiving state, explicitly provides that: “A receiving state shall
supervise offenders consistent with the supervision of other similar offenders
sentenced in the receiving state, including the use of incentives, corrective actions,
graduated responses, and other supervision techniques.” In particular, ICAOS Advisory
Opinion 1-2015 makes clear that: “An offender whose supervision is transferred
under the Compact to North Carolina and commits a violation of one or more of the
terms and conditions of probation may be subjected to confinement for short periods
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in lieu of revocation of probation pursuant to a state statute applicable to offenders
sentenced in North Carolina.”
In sum, I reject Petitioner’s claims. In doing so, I note and emphasize two
things related to any residual due process concerns. They are: Petitioner was
represented by counsel in the state court proceedings and Petitioner had notice and a
opportunity to be heard–indeed, he admitted violations of his conditions of probation.
Certificate of Appealability
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:
1.

The petition for writ of habeas corpus (filing no. 1) and the motion for
stay (filing no. 3) are denied with prejudice.

2.

No certificate of appealability will be issued.

3.

A separate judgment will be issued.

4.

The Clerk shall e-mail a copy of this Memorandum and Order and
Judgment immediately upon filing to Petitioner at the e-mail address
shown on the motion for stay, that is, [e-mail].

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5.

The Clerk shall mail a copy of this Memorandum and Order to Petitioner
by United States Mail.

DATED this 22nd day of March, 2018.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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