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Gonzalez v. Houston

United States District Court, Eighth Circuit

May 16, 2013

JOSE E. GONZALEZ, Petitioner
v.
ROBERT P. HOUSTON, Respondent.

MEMORANDUM AND ORDER

RICHARD G. KOPF, Senior District Judge.

Petitioner has filed a Petition for Writ of Habeas Corpus. (Filing No. 1.) The court has conducted an initial review of the Petition for Writ of Habeas Corpus to determine whether the claims made by Petitioner are, when liberally construed, potentially cognizable in federal court. Condensed and summarized for clarity, the claims asserted by Petitioner are:

Claim One: Petitioner was denied the effective assistance of counsel in violation of the Sixth and Fourteenth Amendments because his trial counsel (1) failed to communicate and discuss the case; (2) failed to use DNA evidence to prove Petitioner's innocence; (3) failed to object to evidence offered at the hearing on Petitioner's motion in limine; (4) entered into an improper stipulation during the hearing on Petitioner's motion in limine; (5) failed to respond to the state's Rule 404 motion; (6) failed to advise Petition of his rights under Rule 404; (7) failed to secure the defense witnesses requested by Petitioner; (8) failed to file the "statutory notice of intent required in sexual assault cases and failed to advise [Petitioner] of those rights under the sexual assault intent statute"; (9) did not allow Petitioner to be present during voir dire; (10) presented "out dated medical research material" during Petitioner's trial; (11) failed to object to exhibits 1 and 2; (12) failed to adequately prepare for trial; and (13) failed to object to the expert testimony of "McFee and Kerry Crosby."
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 the following issues on appeal: (1) denial of right to be present during voir dire; (2) denial of right to fair trial due to judicial misconduct; (3) denial of right to fair trial due to prosecutorial misconduct; (4) denial of right to gather defense evidence; (5) denial of effective assistance of counsel; (6) denial of right to trial by an impartial jury; and (7) denial of right to a proper jury instruction.
Claim Three: Petitioner's conviction was obtained in violation of the Fifth, Sixth, and Fourteenth Amendments because Petitioner was "deni[ed] the right to call defense witnesses and cross[-]examine witnesses."
Claim Four: Petitioner's conviction was obtained in violation of the Sixth and Fourteenth Amendment because Petitioner was denied the right to a speedy and fair trial.

Liberally construed, the court preliminarily decides that Claims One, Two, Three, and Four are potentially cognizable in federal court. However, the court cautions that no determination has been made regarding the merits of these claims or any defenses to them 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 habeas corpus petition (Filing No. 1), the court preliminarily determines that Petitioner's claims, as set forth in this Memorandum and Order, are potentially cognizable in federal court.

2. The Clerk of the court is directed to mail copies of this memorandum and order and the section 2254 petition to Respondent and the Nebraska Attorney General by regular first-class mail.

3. By July 1, 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: July 1, 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 ...

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