Leonor v. Heavican
| Decision Date | 22 June 2021 |
| Docket Number | 8:21CV76 |
| Parties | JUAN LUIS LEONOR, Plaintiff, v. CHIEF JUSTICE HEAVICAN, Nebraska Supreme Court Chief Justice; WRIGHT, Nebraska Supreme Court Justice; MILLER-LERMAN, Nebraska Supreme Court Justice; CASSEL, Nebraska Supreme Court Justice; STACY, Nebraska Supreme Court Justice; KELCH, Nebraska Supreme Court Justice; FUNKE, Nebraska Supreme Court Justice; PAPIK, Nebraska Supreme Court Justice; and DOUGLAS PETERSON, Nebraska Attorney General; Defendants. |
| Court | U.S. District Court — District of Nebraska |
Plaintiff, a state prisoner, filed his pro se Complaint on February 26, 2021, and has been granted leave to proceed in forma pauperis. On April 29, 2021, the court granted Plaintiff's motion for leave to amend, with the understanding that his Amended Complaint, when filed, would supersede his prior pleading, as to which the court had not yet conducted an initial review. (See Filing 9.)
Plaintiff's Amended Complaint (Filing 10) was timely filed on May 11, 2021, and now must be reviewed by the court under 28 U.S.C. §§ 1915(e)(2) and 1915A to determine whether summary dismissal is appropriate. For the reasons discussed below, the court concludes there is a lack of subject matter jurisdiction. This action therefore will be dismissed without prejudice, and without further leave to amend.
The court is required to conduct an initial review of "a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity." 28 U.S.C.A. § 1915A(a). On such initial review, the court must dismiss the complaint if it: "(1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief." 28 U.S.C.A. § 1915A(b). See also 28 U.S.C. § 1915(e)(2)(B) ().
"The essential function of a complaint under the Federal Rules of Civil Procedure is to give the opposing party 'fair notice of the nature and basis or grounds for a claim, and a general indication of the type of litigation involved.'" Topchian v. JPMorgan Chase Bank, N.A., 760 F.3d 843, 848 (8th Cir. 2014) (quoting Hopkins v. Saunders, 199 F.3d 968, 973 (8th Cir. 1999)). Plaintiffs must set forth enough factual allegations to "nudge[ ] their claims across the line from conceivable to plausible," or "their complaint must be dismissed." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 569-70 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) ().
"A pro se complaint must be liberally construed, and pro se litigants are held to a lesser pleading standard than other parties." Topchian, 760 F.3d at 849 (internal quotation marks and citations omitted). This means that "if the essence of an allegation is discernible, even though it is not pleaded with legal nicety, then the district court should construe the complaint in a way that permits the layperson's claim to be considered within the proper legal framework." Stone v. Harry, 364 F.3d 912, 915 (8th Cir. 2004).
As part of its initial review, this court also has an independent obligation to determine whether subject matter jurisdiction exists. See Sac & Fox Tribe of the Mississippi in Iowa, Election Bd. v. Bureau of Indian Affairs, 439 F.3d 832, 836 (8th Cir. 2006); Fed. R. Civ. P. 12(h)(3) (). Osborn v. United States, 918 F.2d 724, 729 (8th Cir. 1990) (citation omitted).
Plaintiff alleges he was convicted in 2002 of, among other charges, two counts of second degree murder, in violation of Neb. Rev. Stat. § 29-304(1), and two counts of use of a deadly weapon to commit a felony, in violation of Neb. Rev. Stat. § 28-1205(1), and he is currently serving his sentences on those convictions. (Filing 10, ¶¶ 4, 5.) Plaintiff's convictions and sentences were affirmed by the Nebraska Supreme Court in State v. Leonor, 263 Neb. 86, 638 N.W.2d 798 (2002).
Plaintiff alleges he unsuccessfully sought state habeas corpus relief in 2017, relying on the Nebraska Supreme Court's decision in State v. Smith, 282 Neb. 720, 806 N.W.2d 383 (2011), which held that "an intentional killing committed without malice upon a 'sudden quarrel,' ... constitutes the offense of manslaughter." Smith, 282 Neb. at 734, 806 N.W.2d at 394. Smith overruled State v. Jones, 245 Neb. 821, 515 N.W.2d 654 (1994), in which the Nebraska Supreme Court had held Jones, 245 Neb. at 830, 515 N.W.2d at 659. After Smith, the only differentiation is the presence or absence of sudden quarrel provocation. See State v. Stack, 307 Neb. 773, 788-89, 950 N.W.2d 611, 622 (2020).
Affirming the dismissal of Plaintiff's habeas petition, the Nebraska Court of Appeals held Plaintiff was precluded from collaterally attacking his convictions because the Nebraska Supreme Court declared in State v. Glass, 298 Neb. 598, 905 N.W.2d 265 (2018), that its holding in Smith is not a substantive rule of law, and thus does not apply retroactively to cases on collateral review.1 (Filing 10, ¶¶ 7-9.)A copy of the Court of Appeals' unpublished opinion, issued on March 27, 2018, is attached to Plaintiff's Amended Complaint. (Filing 10, pp. 23-31.) The court takes judicial notice that Plaintiff's petition for additional review by the Nebraska Supreme Court was denied on June 1, 2018, and his petition for a writ of certiorari was denied by the United States Supreme Court on October 15, 2018.2
Plaintiff seeks a declaration that "as guarantee[d] by the U.S. Constitution as envisioned in Montgomery v. Louisiana, [577 U.S. 190 (2016)], and federal rules of retroactivity, which the Nebraska Supreme Court employs, the rule announced in [Smith] is a substantive rule that applies retroactively to cases on collateral review." Plaintiff also requests "injunctive relief directing the Nebraska Courts to apply retroactively in Plaintiff's case the new rule announced in [Smith], either because the U.S. Constitution commands state courts to do so, or because if it is the Nebraska court[']s choice to employ the federal rule of retroactivity to its rules, then Plaintiff is entitled to no less remedy than what those federal rules require." (Filing 10, p. 21.)
Plaintiff brings this civil action under the Declaratory Judgment Act, which provides in relevant part that 28 U.S.C.A. § 2201(a) (Westlaw 2021). "Further necessary or proper relief based on a declaratory judgment or decree may be granted, after reasonable notice and hearing, against any adverse party whose rights have been determined by such judgment." 28 U.S.C.A. § 2202 (Westlaw 2021).
"The Declaratory Judgment Act does not provide a means for standing or relief." Mitchell v. Dakota Cty. Soc. Servs., 959 F.3d 887, 897 n. 2 (8th Cir. 2020); see Carson v. Pierce, 719 F.2d 931, 933 (8th Cir. 1983) (). "The operation of the Declaratory Judgment Act is procedural only" and does not expand the jurisdiction of federal courts. Yeransian v. B. Riley FBR, Inc., 984 F.3d 633, 637 (8th Cir. 2021), quoting Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240 (1937). As with any claim brought in federal court, a declaratory judgment action must be "definite and concrete, touching the legal relations of parties having adverse legal interests, real and substantial, and admit of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts." Id., quoting McLeod v. General Mills, Inc., 856 F.3d 1160, 1166 (8th Cir. 2017); see Butler v. Dowd, 979 F.2d 661, 673 (8th Cir. 1992) (). The Supreme Court has emphasized "the need ... to prevent federal court litigants from seeking by declaratory judgment to litigate a single issue in a dispute that must await another lawsuit for complete resolution." Yeransian, 984 F. 3d at 637, quoting Calderon v. Ashmus, 523 U.S. 740, 748 (1998).
Furthermore, even if the case-or-controversy requirement is satisfied, the Declaratory Judgment Act is simply "an enabling Act, which confers a discretion on the courts rather than an absolute right upon the litigant." Roark v. S. Iron R-1 Sch. Dist., 573 F.3d 556, 561-62 (8th Cir. 2009), quoting Public Serv. Comm'n of Utah v. Wycoff Co., 344 U.S. 237, 241 (1952). "[A]n important factor in exercising that discretion is whether the declaratory judgment plaintiff has another, more...
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