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Nesbitt v. Houston

United States District Court, Eighth Circuit

May 14, 2013

THOMAS EDWARD NESBITT, Petitioner,
v.
ROBERT HOUSTON, Director NDCS, Respondent.

MEMORANDUM AND ORDER

LAURIE SMITH CAMP, Chief District Judge.

The court has conducted an initial review of the Petition for Writ of Habeas Corpus (Filing No. 1) to determine whether the claims made by Petitioner are, when liberally construed, potentially cognizable in federal court. Liberally construed, Petitioner asserts three claims.

Claim One: Petitioner was denied the effective assistance of counsel in violation of the Sixth and Fourteenth Amendments because his trial counsel failed to (1) object to, and assign error regarding, the destruction of exculpatory evidence, (2) file motions in limine, make objections, call a sidebar, or move for a mistrial regarding "prejudicial prosecutorial inferences of guilt" and Petitioner's "Miranda/Doyle" rights, (3) object to evidence, or file a motion in limine, regarding Petitioner's association with the Hell's Angels, (4) object to jury instructions, (5) object to perjured allegations from "McKeever." (Filing No. 1 at CM/ECF pp. 7-46.)
Claim Two: Petitioner was denied the effective assistance of counsel in violation of the Sixth and Fourteenth Amendments because his appellate counsel failed to raise (1) the destruction of exculpatory evidence, and (2) trial counsel's ineffectiveness. ( Id. )
Claim Three: Petitioner was denied due process in violation of the Fourteenth Amendment because (1) exculpatory evidence was destroyed by law enforcement agencies, (2) his conviction was based upon false police reports and affidavits, (3) prosecutors and law enforcement interfered with his defense and witnesses favorable to his defense, (4) prosecutors made unfair and prejudicial misstatements to the jury, (5) jury members lied during voir dire and failed to stay awake during the trial, and (6) the evidence was insufficient to support his conviction. ( Id. )

The court preliminarily decides that Petitioner's claims One through Three, as set forth in this Memorandum and Order, are potentially cognizable in federal court. However, the court cautions Petitioner that no determination has been made regarding the merits of his claims or any defenses thereto or whether there are procedural bars that will prevent Petitioner from obtaining the relief sought.

IT IS THEREFORE ORDERED that:

1. Upon initial review of the Petition (Filing No. 1), the court preliminarily decides that Petitioner's claims are potentially cognizable in federal court;
2. The Clerk of the court is directed to mail copies of this Memorandum and Order and the Petition (Filing No. 1) to Respondents and the Nebraska Attorney General by regular first-class mail;
3. By June 27, 2013, Respondent shall file a motion for summary judgment or state court records in support of an answer. The Clerk of the court is directed to set a pro se case management deadline in this case using the following text: June 27, 2013: deadline for Respondent to file state court records in support of answer or motion for summary judgment;
4. If Respondent elects to file a motion for summary judgment, the following procedures shall be followed by Respondent and Petitioner:
A. The motion for summary judgment shall be accompanied by a separate brief, submitted at the time of the filing of the motion.
B. The motion for summary judgment shall be supported by such state court records as are necessary to support the motion. Those records shall be contained in a separate filing entitled: "Designation of State Court Records in Support of Motion for Summary Judgment."
C. Copies of the motion for summary judgment, the designation, including state court records, and Respondent's brief shall be served upon Petitioner except that Respondent is only required to provide Petitioner with a copy of the specific pages of the record which are cited in Respondent's brief. In the event that the designation of state court records is deemed insufficient by Petitioner, Petitioner may file a motion with the court requesting additional documents. ...

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