JOHNNY R. WOODRUFF, Petitioner,
MARK FOXALL, Respondent.
MEMORANDUM AND ORDER
JOSEPH F. BATAILLON, 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 convicted in violation of his right to due process because "he was falsely arrested and charged with making a terroristic threat." ( Id. at CM/ECF p. 5.)
Claim Two: Petitioner was convicted in violation of his right to due process because the prosecutor committed misconduct when she told "open lies in court." ( Id. at CM/ECF p. 9.)
Claim Three: Petitioner received the ineffective assistance of counsel in violation of the Sixth Amendment because his trial counsel (a) used to work for the public defender's office; (b) told the judge that Petitioner was guilty; (c) did not take any depositions or file any motions in Petitioner's defense; (d) did not object when the prosecutor lied in open court; (e) manipulated Petitioner's witnesses; (f) refused to correct false information in the presentence investigation report; (g) refused to subpoena tape recorded evidence; and (h) refused to subpoena phone records from the jail. ( Id. at CM/ECF p. 10.)
Claim Four: Petitioner was convicted in violation of his right to due process because the trial court committed misconduct when it (1) allowed the prosecutor to lie in open court; (2) never looked into or investigated the facts; and (3) allowed Petitioner to plead no contest to a crime that never occurred. ( Id. at CM/ECF p. 12.)
Petitioner's claims appear to be entirely unexhausted in the Nebraska state courts. As best as the court can tell from the Petition, Petitioner has been convicted and sentenced, but he has not yet appealed his conviction and sentence to the Nebraska state courts. See 28 U.S.C. § 2254(b)(1) ("An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that... the applicant has exhausted the remedies available in the courts of the State; or... there is an absence of available State corrective process; or... circumstances exist that render such process ineffective to protect the rights of the applicant."). However, because Petitioner alleges that circumstances exist that render the State corrective process ineffective to protect his rights, the court preliminarily decides that Petitioner's claims are potentially cognizable in federal court. The court cautions Petitioner 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, particularly where it is apparent that Petitioner has not exhausted any of his state court remedies.
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 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 ...