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Pardee v. Kinney

United States District Court, D. Nebraska

October 10, 2014

ROBERT PARDEE, Petitioner,
v.
MICHAEL KINNEY, Director, Neb. Dept. C.S., Respondent.

MEMORANDUM AND ORDER

LYLE E. STROM, Senior 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. 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 (a) advised him to waive his preliminary hearing; (b) failed to move to quash the information charging petitioner with racketeering; (c) failed to investigate the elements of a racketeering offense; (d) failed to move the Court for an order directing the State of Nebraska to "immediately provide discovery materials to the defense;" and (e) failed to challenge the illegal custodial interrogation to which petitioner was subjected. (Filing No. 1 at CM/ECF p. 4.)
Claim Two: Petitioner was subjected to an illegal custodial interrogation in violation of his rights under the Fifth and Fourteenth Amendments. (Filing No. 1 at CM/ECF pp. 3-4.)

Liberally construed, the Court preliminarily decides that petitioner's claims are potentially cognizable in federal court. However, petitioner is cautioned 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 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 November 24, 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: November 24, 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 Court Records in Support of Motion for Summary Judgment."
C. Copies of the motion for summary judgment, the designation, including state court records, and respondent's brief shall be served upon petitioner except that respondent is only required to provide petitioner with a copy of the specific pages of the record which are cited in respondent's brief. In the event that the designation of state court records is deemed insufficient by petitioner, petitioner may file a motion with the Court requesting additional documents. Such motion shall set forth the documents requested and the reasons the documents are relevant to the cognizable claims.
D. No later than 30 days following the filing of the motion for summary judgment, petitioner shall file and serve a brief in opposition to the motion for summary judgment. Petitioner shall submit no ...

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