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Kinser v. Sabatka-Rine

United States District Court, D. Nebraska

August 14, 2014

WILLIAM D. KINSER JR., Petitioner,
v.
DIANE SABATKA-RINE, Respondent.

MEMORANDUM AND ORDER

RICHARD G. KOPF, 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 denied due process of law in violation of the Fourteenth Amendment because he "was sentenced [as] a habitual offender where the felony conviction is already an enhancement of a misdemeanor." ( Id. at CM/ECF p. 5.)
Claim Two: Petitioner was denied due process of law in violation of the Fourteenth Amendment because he was sentenced "in a manner in which the intent of the trial court [was] frustrated by the habitual offender statute." ( Id. at CM/ECF p. 7.)
Claim Three: Petitioner was denied the effective assistance of counsel in violation of the Sixth and Fourteenth Amendments because Petitioner's trial counsel "allowed the district court to further enhance an already enhanced offense." ( Id. at CM/ECF p. 8.)
Claim Four: Petitioner was denied the effective assistance of counsel in violation of the Sixth and Fourteenth Amendments because Petitioner's trial counsel "failed to properly cross-examine witnesses." ( Id. )
Claim Five: Petitioner was denied due process of law in violation of the Fourteenth Amendment because the prosecution "used prior convictions and sentences [that] were insufficient to be used for enhancement purposes." ( Id. at CM/ECF p. 10.)

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 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 Petition to Respondent and the Nebraska Attorney General by regular first-class mail.

3. By September 29, 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: September 29, 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 ...

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