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Leon v. State

United States District Court, D. Nebraska

August 26, 2014

IRA R. LEON, Petitioner,
v.
STATE OF NEBRASKA, MICHAEL KENNEY, Director of the Nebraska Department of Corrections, and DIANE SABATKA-RHINE, Warden, Respondents.

MEMORANDUM AND ORDER

LYLE E. STROM, Senior District Judge.

Petitioner has filed an Amended Petition for Writ of Habeas Corpus (Filing No. 8). 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.

The claims asserted by petitioner are:

Claim One: Petitioner was denied the effective assistance of counsel in violation of the Sixth and Fourteenth Amendments because petitioner's trial counsel failed to conduct a reasonable pretrial investigation. ( Id. at CM/ECF pp. 52-55.)
Claim Two: Petitioner was denied a fair trial and due process of law in violation of the Fourteenth Amendment because the State of Nebraska failed to disclose "crucial exculpatory evidence." ( Id. at CM/ECF pp. 56-62.)
Claim Three: Petitioner was denied a fair trial and due process of law in violation of the Fourteenth Amendment because, as a result of the State's actions in withholding exculpatory evidence, petitioner's "plea was not done freely, intelligently, voluntarily, or with the understanding as required by law." ( Id. at CM/ECF p. 62.)
Claim Four: Petitioner was denied due process of law in violation of the Fourteenth Amendment because the Nebraska state courts were "clearly wrong to deny [petitioner] DNA testing[.]" ( Id. at CM/ECF pp. 63-72.)
Claim Five: Petitioner was denied the right to a fair trial in violation of the Fourteenth Amendment because counsel for the State committed prosecutorial misconduct when he presented evidence he knew to be false or misleading and failed to disclose evidence that was favorable to the defense. ( Id. at CM/ECF pp. 73-76.)

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 ORDERED:

1. Upon initial review of the Amended Petition for Writ of Habeas Corpus (Filing No. 8), 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 for Writ of Habeas Corpus to Respondent and the Nebraska Attorney General by regular first-class mail.

3. By October 14, 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: October 14, 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 ...


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