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Dixon v. Skrobecki

United States District Court, D. Nebraska

May 2, 2014

MICHALE M. DIXON, Petitioner,
v.
DENISE SKROBECKI, Warden, Respondent.

MEMORANDUM AND ORDER

JOSEPH F. BATAILLON, District Judge.

Petitioner has filed an Amended Petition for Writ of Habeas Corpus. (Filing No. 10.) The court has conducted an initial review of the Amended 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 constitutional right to retain counsel of her own choosing.
Claim Two: Petitioner received the ineffective assistance of counsel in violation of the Sixth and Fourteenth Amendments because trial counsel did not file an interlocutory appeal asserting Petitioner's right to retain counsel of her choosing, or advise Petitioner that such an appeal was possible.
Claim Three: Petitioner's due process rights were violated when the state district court proceeded to sentencing immediately after the plea hearing.
Claim Four: Petitioner's due process rights were violated when the state district court sentenced her as a habitual criminal.

Liberally construed, the court preliminarily decides that 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 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 amended habeas corpus petition (Filing No. 10), 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 amended petition to Respondent and the Nebraska Attorney General by regular first-class mail.

3. By June 16, 2014, 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 16, 2014: 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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