Harper v. Houston et al

Filing 41

MEMORANDUM AND ORDER that Part 3 of Petitioner Ernest C. Harper's habeas claim, as summarized in the court's March 9, 2012, Memorandum and Order, is dismissed with prejudice; Parts 1 and 2 of Petitioner's habeas claim, as summarized in the court's March 9, 2012, Memorandum and Order remain dismissed without prejudice; A separate judgment will be entered in accordance with this Memorandum and Order; and Petitioner's Objection (filing 35 ) is denied. Ordered by Chief Judge Laurie Smith Camp. (Copy mailed to pro se party) (ADB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ERNEST C. HARPER,
Petitioner,
v.
ROBERT P. HOUSTON, Director
Nebraska Department of Corr., FRED
BRITTEN, Warden, Tecumseh
Correctional Inst., and NEBRASKA
DEPARTMENT OF CORRECTIONAL
SERVICES,
Respondents.

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CASE NO. 8:11CV324

MEMORANDUM
AND ORDER

This matter is before the court on Petitioner Ernest C. Harper’s (“Harper”) Petition
for Writ of Habeas Corpus (“Petition”). (Filing No. 1.) Respondents filed an Answer (Filing
No. 32), Amended Brief on the merits of the Petition (Filing No. 34), Reply Brief (Filing No.
39), and relevant State Court Records (Filing Nos. 12, 27, 30, and 31.) Harper filed a
response to Respondents’ Answer and Brief (Filing No. 34) and a Response to the Reply
Brief (Filing No. 40). This matter is therefore deemed fully submitted.
BACKGROUND
In 1982, a jury convicted Harper of one count of robbery, one count of use of a
firearm to commit a felony, and two counts of first degree sexual assault. State v. Harper,
340 N.W.2d 391, 392 (Neb. 1983).

The Douglas County, Nebraska District Court

thereafter sentenced Harper to serve 16 2/3-50 years on the robbery conviction, 6 2/3-20
years on the use of a firearm to commit a felony conviction, 10-20 years on the first sexual
assault conviction, and 16 2/3-50 years on the remaining sexual assault conviction. (Filing
No. 4 at CM/ECF p. 9.) Petitioner is currently in the custody of the Nebraska Department

of Correctional Services on these sentences. (Filing No. 1.) This matter is Petitioner’s fifth
petition for writ of habeas corpus filed in this court relating to this conviction and sentence.
(Filing No. 12-1, Attach. 1, at CM/ECF pp. 9-12.) As with his fourth petition for writ of
habeas corpus, Petitioner did not seek authorization from the Eighth Circuit prior to filing
the Petition in this matter. (Id. at CM/ECF p. 9; see also Docket Sheet.)
Upon initial review, the court liberally construed the Petition and determined that
Harper asserted the following claim: Harper was denied equal protection and due process
of law in violation of the Fourteenth Amendment because: (1) the trial court “failed to make
a truth in sentencing advisement” under Nebraska law; (2) the trial court failed to grant
credit to Harper for “time served”; and (3) Harper is currently being denied “good time
credit” under Nebraska law. (Filing No. 11.) On March 9, 2012, the court determined that
Parts 1 and 2 of Harper’s habeas claim were successive and that Harper must seek
authorization from the Eighth Circuit in order to proceed on those portions of his claim.
(Filing No. 20.) Because Harper failed to seek that authorization, the court dismissed Parts
1 and 2 of Harper’s habeas claim without prejudice on May 25, 2012. (Filing No. 26.)
Thus, only Part 3 of Harper’s claim, that he is currently being denied “good time credit”
under Nebraska law in violation of his Fourteenth Amendment rights, remains.
ANALYSIS
Respondents argue that Harper’s remaining claim relating to his “good time credits”
should also be dismissed because it was filed after the applicable statute of limitations
expired, because it is successive, and because it is procedurally defaulted. The issues
relating to whether the Petition is successive or barred by the applicable statute of
limitations are complex. In addition, the State Court Records filed with the court are
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insufficient to resolve the Petition on these bases. However, because the State Court
Records show that Part 3 of Harper’s claim is procedurally defaulted, the court dismisses
this remaining portion of Harper’s habeas claim.
I.

Standards for Procedural Default
As set forth in 28 U.S.C. § 2254(b)(1):
(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)
(ii)

there is an absence of available State corrective
process; or
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 . . . 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.
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. In Nebraska, “one complete round” ordinarily
means that each § 2254 claim must have been presented to the applicable State district
court, then in an appeal to the Nebraska Court of Appeals, and then in a petition for further

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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).
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 456 n. 1.
Under Nebraska law, “[a]n appellate court will not entertain a successive motion for
postconviction relief unless the motion affirmatively shows on its face that the basis relied
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upon for relief was not available at the time the movant filed the prior motion.” State v.
Ortiz, 670 N.W.2d 788, 792 (Neb. 2003). In such circumstances, where a Nebraska state
court rejects a claim on state procedural grounds, and “issues a plain statement that it is
rejecting petitioner’s federal claim on state procedural grounds,” 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 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). Even where a claim has
been procedurally defaulted, a petitioner is entitled to an opportunity to demonstrate cause
and prejudice to excuse the default. Akins, 410 F.3d at 456 n. 1.
II.

Part 3 of Harper’s Claim
On August 4, 2010, Harper filed a “Motion for Credit for Time Served on Sentence”

(the “Postconviction Motion”) in the Douglas County, Nebraska District Court. (Filing No.
31-1 at CM/ECF pp. 13-15.) In the Postconviction Motion, Harper raised only Parts 1 and
2 of his habeas claim, and did not raise Part 3. (Id.) Indeed, Harper does not reference
“good time credits” anywhere in the Postconviction Motion. (Id.) The Douglas County
District Court denied the Postconviction Motion in its entirety. (Id. at CM/ECF p. 21.)
Harper filed an appeal of the Douglas County District Court’s decision. (Id. at CM/ECF pp.
32-59.)
Liberally construing Harper’s brief on appeal, he raised the issue of whether his
“good time credits” are being properly calculated to the Nebraska Court of Appeals. (Id.
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at CM/ECF pp. 55-58.) However, although Harper raised the calculation of his “good time
credits” as violations of state law, he argues only that the state courts have repeatedly
misapplied state law and does not argue that the state courts committed a federal due
process violation. (Id.) As set forth above, in order to “fairly present” his habeas claims,
Harper “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, 487 F.3d at 1096,
(quotation omitted); see also Rucker, 563 F.3d at 771, (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). As in the Nebraska Court of Appeals, Harper raised
Part 3 in the Nebraska Supreme Court as a state law claim only, citing no federal authority.
(Filing No. 31-1 at CM/ECF pp. 63-67.) In short, Harper did not raise Part 3 of his habeas
claim in the Douglas County District Court at all, and raised it only in the context of
Nebraska state law in the Nebraska Court of Appeals and Nebraska Supreme Court. As
such, Harper failed to “fairly present” Part 3 of his habeas claim to the Nebraska state
courts.
Moreover, Harper is now procedurally barred from raising Part 3 in another
postconviction motion, because he cannot submit a successive motion for post conviction
relief where, as here, the basis for relief was clearly available at the time of the
Postconviction Motion. See Ortiz, 670 N.W.2d at 792. As such, Part 3 of Harper’s habeas
claim is procedurally defaulted and the court cannot reach the merits of this claim unless
Harper demonstrates cause and prejudice excusing the default.

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III.

Cause and Prejudice
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, or, in rare
cases, that failure to consider the claim will result in a fundamental miscarriage of justice.
Coleman v. Thompson, 501 U.S. 722, 750 (1991). 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.”).
The court has carefully reviewed the record in this matter. Liberally construed,
Harper argues that Part 3 of his habeas claim is not procedurally defaulted because he
“has a right to question and test the legailty [sic] of the sentence enforcement at any time
if there is a miscomputation and miscalculation which serve [sic] to make the sentence
longer than imposed by the sentencing court.” (Filing No. 40 at CM/ECF p. 4.) Harper
does not cite any cases in support of this argument, nor does the court believe any exist.
Indeed, there is no case law of which the court is aware that permits a petitioner to raise
a state-law only claim relating to the calculation of “good time credits” whenever the
petitioner chooses, regardless of any procedural bar. In short, Harper’s argument lacks
merit. Harper has not submitted any argument or evidence which shows that he was
objectively impeded from filing Part 3 of his habeas claim in his Postconviction Motion, or
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on appeal. Because Harper has not demonstrated cause and prejudice to excuse his
procedural default, Part 3 of his habeas claim is dismissed with prejudice.
IT IS THEREFORE ORDERED that:
1.

Part 3 of Petitioner Ernest C. Harper’s habeas claim, as summarized in the
court’s March 9, 2012, Memorandum and Order, is dismissed with prejudice;

2.

Parts 1 and 2 of Petitioner’s habeas claim, as summarized in the court’s
March 9, 2012, Memorandum and Order remain dismissed without prejudice;

3.

A separate judgment will be entered in accordance with this Memorandum
and Order; and

4.

Petitioner’s Objection (Filing No. 35) is denied.

DATED this 6th day of December, 2012.
BY THE COURT:

s/Laurie Smith Camp
Chief United States District Judge

*This opinion may contain hyperlinks to other documents or Web sites. The U.S.
District Court for the District of Nebraska does not endorse, recommend, approve, or
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Likewise, the court has no agreements with any of these third parties or their Web sites.
The court accepts no responsibility for the availability or functionality of any hyperlink.
Thus, the fact that a hyperlink ceases to work or directs the user to some other site does
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