Ollie J. Davis v. State of Nebraska Frank Gunther, Warden for the State of Nebraska Karen Shortridge, Warden for the Omaha Correctional Center

MAGILL, Circuit Judge.

Ollie J. Davis appeals the order of the district court denying his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254(a). Because we find that Davis could not have foreseen the state court’s interpretation of its habitual criminal statute, we conclude that the court’s retroactive application of its interpretation to Davis was a violation of the due process clause of the Fourteenth Amendment. 1 We thus reverse and remand to the district court for action consistent with this opinion.

I

Davis contends the State applied its Habitual Criminal Act, Neb.Rev.Stat. §…