United States District Court, D. Nebraska
JAMES A. COUTTS, Petitioner,
WARDEN BRIAN GAGE, Respondent.
MEMORANDUM AND ORDER
LAUIRE SMITH CAMP, District Judge.
Petitioner James Coutts ("Coutts" or "Petitioner") has filed an Amended Petition for Writ of Habeas Corpus ("Amended Petition) in this matter. (Filing No. 24.) The court has conducted an initial review of the Amended Petition 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's conviction was obtained in violation of his right to due process because "there was insufficient evidence as a matter of law to sustain [his] conviction." ( Id. at CM/ECF p. 5.)
Claim Two: The trial court abused its discretion by imposing an excessive sentence. ( Id. at CM/ECF p. 6.)
Claim Three: Petitioner's conviction violated the Fifth Amendment protection against double jeopardy. ( Id. at CM/ECF p. 12.)
Liberally construed, the court preliminarily decides that Claims One and Three 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.
The court decides that Claim Two is not cognizable in a federal court habeas action because it does not state a federal constitutional claim. Lupien v. Clarke, 403 F.3d 615, 619 (8th Cir. 2005), (reiterating that in conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States).
IT IS THEREFORE ORDERED that:
1. Upon initial review of the Amended Petition (Filing No. 24), the court preliminarily determines that Claims One and Three, as set forth in this Memorandum and Order, are potentially cognizable in federal court;
2. The court determines that Claim Two is not cognizable in a federal court habeas action, and is therefore dismissed;
3. The Clerk of the court is directed to mail copies of this Memorandum and Order and the Amended Petition (Filing No. 24) to Respondent and the Nebraska Attorney General by regular first-class mail;
4. By August 5, 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: August 5, 2014: deadline for Respondent to file state court records in support of answer or motion for summary judgment;
5. 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 ...