Ware v. Frakes

Filing 15

MEMORANDUM AND ORDER - The Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254, ECF No. 1 , filed by David Ware, is denied. A separate judgment will be entered in accordance with this Memorandum and Order. Ordered by Chief Judge Laurie Smith Camp. (LKO)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

DAVID WARE,
Petitioner,

8:17CV85

vs.
MEMORANDUM AND ORDER
SCOTT R. FRAKES,
Respondent.

This matter is before the Court on the Petition for Writ of Habeas Corpus, ECF No.
1, filed by David Ware. For the reasons stated below, the Petition will be denied.
BACKGROUND
On April 13, 1984, Petitioner David Ware was convicted of first degree murder and
later received a mandatory life sentence. The Nebraska Supreme Court affirmed his
conviction and sentence. State v. Ware, 365 N.W.2d 418 (Neb. 1985). Ware was
eighteen years old when he committed the murder.
On August 16, 2012, Ware filed a motion for postconviction relief with the District
Court for Douglas County, Nebraska, asserting his life sentence was unconstitutional
under Miller v. Alabama, 567 U.S. 460 (2012). In Miller, the Supreme Court held “that
mandatory life without parole for those under the age of 18 at the time of their crimes
violates the Eighth Amendment’s prohibition on ‘cruel and unusual punishments.’” 567
U.S. at 465. The district court denied Ware’s postconviction motion for resentencing and
the Nebraska Supreme Court affirmed because Ware was over eighteen when he
committed the murder and “Miller applies to those individuals who were under the age of

18 at the time a crime punishable by a life sentence without the possibility of parole was
committed.” State v. Ware, 870 N.W.2d 637, 640 (Neb. 2015).
Ware filed his habeas Petition with this Court on March 20, 2017, arguing his
sentence violates the Eighth Amendment’s prohibition on cruel and unusual punishments
after Miller. The Petition has been fully briefed and is ripe for review.
STANDARD OF REVIEW
Under 28 U.S.C. § 2254(b)(1), when a state court provides an effective and
available corrective process, a federal court may not grant habeas relief if the petitioner
failed to “exhaust[] the remedies available in the courts of the State.” State courts are
entitled to “one full opportunity to resolve any constitutional issues;” thus, a petitioner must
“invoke one complete round of the State’s established appellate review process before
[the petitioner] present[s] those issues in an application for habeas relief in federal court.”
Welch v. Lund, 616 F.3d 756, 758 (8th Cir. 2010) (quoting O’Sullivan v. Boerckel, 526
U.S. 838, 845 (1999)). “A [petitioner] is not required to pursue ‘extraordinary’ remedies
outside of the standard review process, but he ‘must seek the discretionary review of the
state supreme court when that review is part of the ordinary and established appellate
review process in that state.’” Id. (quoting Dixon v. Dormire, 263 F.3d 774, 777 (8th
Cir.2001)). A failure to exhaust available state court remedies properly within the allotted
time “results in procedural default of the [petitioner’s] claims.” Id.
Under 28 U.S.C. § 2254(d), federal courts conduct “only a limited and deferential
review of underlying state court decisions” giving deference to “decision[s] by a state court
‘with respect to any claim that was adjudicated on the merits in State court proceedings.’”
Worthington v. Roper, 631 F.3d 487, 495 (8th Cir. 2011) (quoting Collier v. Norris, 485
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F.3d 415, 421 (8th Cir. 2007)). Even if a petitioner has exhausted available state court
remedies, the petitioner is still precluded from habeas relief unless a state court decision:
(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the
Supreme Court of the United States; or
(2) resulted in 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).
The burden is on the petitioner to prove that a state court’s “application of Supreme
Court holdings [was] [ ] ‘objectively unreasonable,’ not merely wrong.” Ervin v. Bowersox,
892 F.3d 979, 983 (8th Cir. 2018) (quoting White v. Woodall, 572 U.S. 415, 134 S. Ct.
1697, 1702 (2014)). “A state court ‘unreasonably applies’ Supreme Court precedent if it
‘identifies the correct governing legal principle from th[e] [Supreme] Court’s decisions but
unreasonably applies that principle to the facts of the prisoner’s case.’” Bowersox, 892
F.3d at 983 (quoting Worthington, 631 F.3d at 495). 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).
“Absent state court adjudication [of a particular claim], a federal habeas court
[should] apply de novo review.” Worthington, 631 F.3d at 495; see also Gabaree v.
Steele, 792 F.3d 991, 999 (8th Cir. 2015) (citing Rompilla v. Beard, 545 U.S. 374, 390
(2005)).
DISCUSSION
Ware contends that his mandatory life sentence violates the Eighth Amendment’s
prohibition on cruel and unusual punishments because, although he was over eighteen

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when he committed the crime for which he was sentenced, he was still a minor under
Nebraska law, which set the age of majority at nineteen. He bases this claim on the
Supreme Court’s decision in Miller. Defendant Scott Frakes argues the Petition should
be denied because it is untimely, and it lacks merit under 28 U.S.C. § 2254(d).
I. Timeliness
Ware’s Petition was not filed within the one-year limitations period provided in 28
U.S.C. § 2244(d). That Section provides:
(1) A 1-year period of limitation shall apply to an application for a writ of
habeas corpus by a person in custody pursuant to the judgment of a State
court. The limitation period shall run from the latest of-(A) the date on which the judgment became final by the conclusion
of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created
by State action in violation of the Constitution or laws of the United
States is removed, if the applicant was prevented from filing by such
State action;
(C) the date on which the constitutional right asserted was initially
recognized by the Supreme Court, if the right has been newly
recognized by the Supreme Court and made retroactively applicable
to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of due
diligence.
(2) The time during which a properly filed application for State postconviction or other collateral review with respect to the pertinent judgment
or claim is pending shall not be counted toward any period of limitation
under this subsection.
Ware attempts to assert a constitutional right newly recognized by the Supreme
Court in Miller, 567 U.S. 460, and made retroactively applicable by the Court in
Montgomery v. Louisiana, __U.S.__, 136 S. Ct. 718 (2016). Thus, § 2244(d)(1)(C)
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controls the timeliness of the Petition. The timeliness of Ware’s federal habeas Petition
depends on whether it was filed within one year from the date Miller was decided, not
counting the time during which Ware’s state post-conviction proceeding was pending. 28
U.S.C. § 2244(d)(1)(C) & (2). See also Dodd v. United States, 545 U.S. 353, 357 (2005)
(stating the one-year limitations period runs from the date on which the right asserted was
recognized, not the date on which it was made retroactively applicable).
Miller was decided on June 25, 2012, and Ware filed his federal habeas Petition
on March 20, 2017—1,729 days later. He filed his application for state post-conviction
relief on August 16, 2012, and the Nebraska Supreme Court issued its mandate denying
relief on November 18, 2015—1,189 days later. See Lawrence v. Florida, 549 U.S. 327,
332 (2007) (measuring the pendency of a state post-conviction proceeding under §
2244(d)(2) from the date of filing to the date the state’s highest court issues its mandate).
Excluding the time during which Ware’s state post-conviction proceeding was pending,
his federal habeas Petition was filed more than one year—540 days—after Miller was
decided. Therefore, it is not timely under § 2244(d).
II. Merits
Even if Ware’s Petition were timely, it lacks merit under § 2254(d). The Nebraska
Supreme Court rejected Ware’s argument that because he was a minor under Nebraska
law when he committed the offense for which he received a mandatory life sentence, he
is entitled to relief under Miller. State v. Ware, 870 N.W.2d 637, 639-40 (Neb. 2015). The
Court reasoned that Ware was over eighteen when he committed the crime for which he
was sentenced and, “[b]y its very language, Miller applies to those individuals who were
under the age of 18 at the time a crime punishable by a life sentence without the possibility
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of parole was committed.” Id. at 640; see also Miller, 567 U.S. at 465 (“We therefore hold
that mandatory life without parole for those under the age of 18 at the time of their crimes
violates the Eighth Amendment’s prohibition on ‘cruel and unusual punishments.’”). 1 This
was a reasonable application of Miller to Ware’s case. See Bowersox, 892 F.3d at 983.
Accordingly,
IT IS ORDERED:
1.

The Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254, ECF No.
1, filed by David Ware, is denied; and

2.

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

Dated this 19th day of July, 2018.

BY THE COURT:
s/Laurie Smith Camp
Chief United States District Judge

1 Ware argues that because the Court’s opinion subsequently stated “[w]e therefore hold that the
Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole
for juvenile offenders[ ]”—without specifically defining a juvenile as a person under the age of eighteen—
and because Ware was a juvenile under Nebraska law when he committed the crime for which he was
sentenced, he is entitled to relief under Miller. 567 U.S. at 479 (emphasis added); Petitioner’s Br., ECF No.
3, Page ID 24.

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