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McDougald v. Houston

United States District Court, Eighth Circuit

June 5, 2013

KEITH MCDOUGALD, Petitioner,
v.
ROBERT P. HOUSTON, Director, and FRED BRITTEN, Warden, et al., Respondents.

MEMORANDUM AND ORDER

JOSEPH F. BATAILLON, 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. Petitioner has made three claims.

Condensed and summarized for clarity, the claims asserted by Petitioner are:

Claim One: Petitioner was denied due process in violation of the Fourteenth Amendment because 1) "there was never a proper Amended Information filed"; and 2) "Petitioner's conviction was obtained on the basis of a no contest plea which was not knowingly, willingly, intelligently, and understandingly made."
Claim Two: Petitioner was denied effective assistance of trial counsel in violation of the Sixth and Fourteenth Amendments because petitioner's counsel failed to investigate; 2) "discover and produce evidence"; 3) "properly and correctly advise"; 4) "present a known defense"; and 5) failed to make timely objections.
Claim Three: Petitioner was denied effective assistance of appellate counsel in violation of the Sixth and Fourteenth Amendments because appellate counsel failed "to raise issue[s] that would appear on the record, such as, that the plea was invalid and void due to a defective Information or Amended Information and due to the fact medical evidence refuted the state[']s case."

Liberally construed, the court preliminarily decides that all of Petitioner's claims 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 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 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 Petition to Respondent and the Nebraska Attorney General by regular first-class mail.

3. By July 16, 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 16, 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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