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Robinson v. Sabatka-Rine

United States District Court, Eighth Circuit

October 18, 2013

EDWARD ROBINSON JR., Petitioner,
v.
DIANE SABATKA-RINE, Warden of Nebraska State Penitentiary, Respondent.

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. Liberally construed, Petitioner asserts two claims[1]:

Claim One: Petitioner was denied due process in violation of the Fourteenth Amendment because (1) the state used a preemptory strike to remove a juror based on the juror's race, (2) Petitioner's cell phone records were admitted as evidence, (3) Petitioner's nephew's coat was admitted into evidence, (4) the evidence at trial was insufficient to find Petitioner guilty beyond a reasonable doubt, (5) the prosecutor committed prosecutorial misconduct during opening and closing arguments, (6) the trial court erred in determining that Petitioner was a habitual criminal, (7) a sleeping juror was not removed from the jury, (8) a juror who had contact with the victim's wife was not removed from the jury, and (9) an erroneous jury instruction was used.

Claim Two: Petitioner was denied the effective assistance of counsel in violation of the Sixth and Fourteenth Amendments because his trial counsel (1) failed to move for a mistrial when she learned that the jury discovered a marijuana cigarette in an exhibit offered during trial, (2) failed to inform Petitioner that the jury discovered a marijuana cigarette in an exhibit until after Petitioner's direct appeal, (3) failed to call Shamika Brown, Damar Haywood, Jeremy Webb, and Cassandra Lockett as witnesses, (4) failed to investigate a crime stoppers telephone call, (5) did not properly defend Petitioner with regard to cell phone evidence, (6) failed to object to the State's repeated, and incorrect, reference to the victim's vehicle as an "Impala, " (7) failed to move for a mistrial during the prosecution's closing arguments, (8) failed to move for a mistrial based on the jurors' behavior, (9) failed to argue that an intervening cause led to the victim's death, (10) failed to move for a mistrial on grounds of prosecutorial misconduct, (11) failed to move for a mistrial based on the jurors' inspection of a coat in evidence, (12) failed to depose Cassandra Lockett, and (13) failed to introduce Joe Lockett's February 26 statement as evidence to impeach his credibility.

(Filing No. 1 at CM/ECF pp. 7-83; Filing No. 4.)

The court preliminarily decides that Petitioner's Claims, 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 December 2, 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: December 2, 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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