Armendariz v. Frakes

Filing 13

MEMORANDUM AND ORDER - This matter is dismissed with prejudice, and a separate judgment will be entered in accordance with this Memorandum and Order. The court will not issue a certificate of appealability in this matter. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party)(GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JONATHON L. ARMENDARIZ,
Petitioner,
V.
SCOTT R. FRAKES, Director of the
Nebraska Department of Corrections,
Respondent.

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8:15CV161

MEMORANDUM
AND ORDER

This matter is before the court on Petitioner Jonathon Armendariz’s Petition for
Writ of Habeas Corpus (“petition”). (Filing No. 1.) For the reasons that follow, the
court will dismiss the petition with prejudice and deny a certificate of appealability.
I. BACKGROUND
In July, 2011, Petitioner pled guilty to one count of second degree murder and
one count of use of a firearm to commit a felony. Petitioner was sentenced to 80 years
to life imprisonment on the murder charge, and 10 to 20 years imprisonment on the
firearm charge. (Filing No. 5-3 at CM/ECF pp. 4-5.) Petitioner was 17 years old at
the time the crimes were committed.
Petitioner filed a direct appeal, arguing that the district court abused its
discretion by imposing excessive sentences. (Filing No. 5-4 at CM/ECF pp. 5, 7-14.)
The Nebraska Supreme Court summarily affirmed the district court’s judgment.
(Filing No. 5-1 at CM/ECF p. 2.)
Petitioner then filed a motion for post-conviction relief in the state district court,
and later an amended post-conviction motion. (Filing No. 5-13 at CM/ECF pp. 3, 37.)

Petitioner raised several claims in his post-conviction motion, including a claim that
his trial counsel was ineffective for failing to raise the invalidity of his plea based on
Miller v. Alabama, 132 S.Ct. 2455 (2012) on direct appeal. (Filing No. 5-13 at
CM/ECF pp. 96-100.) Petitioner asserted that counsel should have argued that his
plea should be withdrawn because Petitioner only agreed to plead guilty to avoid a life
sentence without parole. (Id.) The district court denied Petitioner’s post-conviction
claims without an evidentiary hearing. (Filing No. 5-13 at CM/ECF pp. 138-45.)
Petitioner appealed to the Nebraska Supreme Court, which affirmed the district
court’s judgment. (Filing No. 5-3.) In doing so, the Nebraska Supreme Court stated
the following with respect to Petitioner’s Miller claim:
In Miller v. Alabama, the U.S. Supreme Court held that a juvenile cannot
be subject to a mandatory sentence of life imprisonment without parole
for a homicide. If applied to Armendariz, who was 17 years old at the
time of the murder, Miller would have eliminated the possibility of
mandatory life imprisonment for a first degree murder charge. Miller
was decided after Armendariz entered his plea. Because of this timing,
the district court reasoned Miller could not be the basis of Armendariz’
ineffective assistance of counsel claim.
But Armendariz did not allege that trial counsel was ineffective in failing
to anticipate Miller at the time he advised Armendariz to enter the plea.
Instead, he argues that his counsel was ineffective for failing to raise an
appellate argument based on Miller.
Armendariz acknowledges that Miller was not actually decided until
after his direct appeal was completed. He argues, however, that the U.S.
Supreme Court had granted certiorari in Miller before counsel submitted
his direct appeal brief. Armendariz alleges that his counsel acted in a
deficient manner because he should have been aware of the potential
impact of Miller on his case and should have asked that the appeal be
stayed pending the outcome of Miller.
Appellate counsel did not perform in a deficient manner by failing to ask
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that the appeal be stayed pending the outcome of Miller. The failure to
anticipate a change in existing law does not constitute deficient
performance.
(Filing No. 5-3 at CM/ECF p. 12); State v. Armendariz, 289 Neb. 896, 911, 857
N.W.2d 775, 788 (2015) (footnotes omitted).
II. DISCUSSION
Petitioner alleges that his sentence for second degree murder violates the Eighth
Amendment’s prohibition against cruel and unusual punishment. Petitioner, who was
17 years old at the time the crimes were committed, argues that his sentence is
unconstitutional under Miller because it is “essentially” a life sentence. (Filing No.
1 at CM/ECF p. 24.) Petitioner’s brief in response to Respondent’s answer also
asserts that his trial counsel provided ineffective assistance by failing to raise on direct
appeal the invalidity of his plea under Miller.
In Miller, 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, 132 S.Ct. at 2469. Applying Miller, the Eighth
Circuit Court of Appeals recently concluded that a 600-month sentence imposed on
a juvenile homicide offender did not fall within Miller’s categorical ban on mandatory
life-without-parole sentences. United States v. Jefferson, No. 15-1309, 2016 WL
945570, *2 (8th Cir. March 14, 2016). The Eighth Circuit explained that the Supreme
Court in Miller “did not hold that the Eighth Amendment categorically prohibits
imposing a sentence of life without parole on a juvenile offender.” Id. at *2. Rather,
“the Court held that the mandatory penalty schemes at issue prevented the sentencing
judge or jury from taking into account ‘that the distinctive attributes of youth diminish
the penological justifications for imposing the harshest sentences on juvenile
offenders, even when they commit terrible crimes.” Id. at *2 (quoting Miller, 132
S.Ct. at 2475) (emphasis in original). Other circuit courts have similarly declined to
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apply Miller’s ban to discretionary life sentences. See Davis v. McCollum, 798 F.3d
1317, 1321-22 (10th Cir. 2015); Croft v. Williams, 773 F.3d 170, 171 (7th Cir. 2014);
Belle v. Uribe, 748 F.3d 857, 869 (9th Cir. 2013).
Petitioner’s sentence does not fall within Miller’s categorical ban on mandatory
life-without-parole sentences. Petitioner was convicted of second degree murder,
which is a Class IB felony under Nebraska law. See Neb. Rev. Stat. § 28-304(2)
(Reissue 2008). The state district court had discretion to sentence Petitioner within
the statutory sentencing range for a Class IB felony, which is 20 years to life in prison.
Neb. Rev. Stat. § 28-105. Utilizing this discretion, the state district court explicitly
considered, among other things, Petitioner’s age, mentality, education, and experience
when sentencing him. (Filing No. 5-14 at CM/ECF pp. 40-42.) Moreover, Petitioner
is, in fact, eligible for parole. Pursuant to Neb. Rev. Stat. § 83-1,110 (Reissue 2008),
an offender becomes eligible for parole after serving “one-half the minimum term of
his or her sentence.” Therefore, Petitioner’s argument that his sentence is
unconstitutional under Miller lacks merit.
Also, to the extent that Petitioner asserts that his counsel was ineffective by
failing to raise on direct appeal the invalidity of his plea under Miller, this argument
fails. The Nebraska Supreme Court previously rejected Petitioner’s claim, stating
“counsel did not perform in a deficient manner by failing to ask that the appeal be
stayed pending the outcome of Miller. The failure to anticipate a change in existing
law does not constitute deficient performance.” (Filing No. 5-3 at CM/ECF p. 12);
State v. Armendariz, 289 Neb. 896, 911, 857 N.W.2d 775, 788 (2015) (footnote
omitted). The Nebraska Supreme Court’s conclusion is consistent with federal law
and was based upon a reasonable determination of the facts. See Ruff v. Armontrout,
77 F.3d 265, 268 (8th Cir. 1996) (stating that “[f]ailure to anticipate a change in
existing law does not amount to ineffective assistance of counsel”). Therefore,
Petitioner’s Petition for Writ of Habeas Corpus will be dismissed.

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III. CERTIFICATE OF APPEALABILITY
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 for in Slack v. McDaniel, 529 U.S. 473, 484485 (2000). I have applied the appropriate standard and determined Petitioner is not
entitled to a certificate of appealability.
IT IS THEREFORE ORDERED:
1.
This matter is dismissed with prejudice, and a separate judgment will be
entered in accordance with this Memorandum and Order.
2.

The court will not issue a certificate of appealability in this matter.

DATED this 2nd day of May, 2016.
BY THE COURT:
Richard G. Kopf
Senior United States District Judge

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