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Peterson v. Lewien

United States District Court, D. Nebraska

August 15, 2014

RANDY S. PETERSON, Petitioner,
v.
LEWIEN, Wardon, 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: Nebraska's statute prohibiting the possession of a firearm by a felon is unconstitutional as applied to Petitioner because, under the statute, he was not allowed to defend himself from an armed attacker. ( Id. at CM/ECF p. 4.)
Claim Two: Petitioner was denied due process of law in violation of the Fourteenth Amendment because the prosecutor made the prejudicial statement that "he doesn't care what the circumstances are, his job is to convict felons, that the defendant is a felon and he was going to convict him and send him to jail, as that is where felons belong." ( Id. at CM/ECF pp. 5-6.)
Claim Three: Petitioner was denied due process of law in violation of the Fourteenth Amendment because the county court judge made the prejudicial statement that "she knows that the statutes are defective[] but she doesn't care, she is not up there for justice, her job is to convict, that is what she is up there for, to convict." ( Id. at CM/ECF p. 7.)
Claim Four: Petitioner was denied due process of law in violation of the Fourteenth Amendment because the district court judge would not allow Petitioner to challenge the constitutionality of Nebraska's statute prohibiting the possession of a firearm by a felon. ( Id. at CM/ECF p. 9.)

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 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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