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Stoltenberg v. Lewien

United States District Court, D. Nebraska

January 14, 2015

JOSEPH A. STOLTENBERG, Petitioner,
v.
BARBARA LEWIEN, Warden of O.C.C., an institution under jurisdiction, Respondent.

MEMORANDUM AND ORDER

LAURIE SMITH CAMP, Chief 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 his plea was not knowing and voluntary. (Filing No. 1 at ECF 5.)
Claim Two: Petitioner was denied the effective assistance of counsel in violation of the Sixth and Fourteenth Amendments because trial counsel did not (a) raise the issue of Petitioner's competency prior to Petitioner entering his plea ( id. at ECF 6-7); (b) advise Petitioner of potential defenses ( id. at ECF 10); (c) move to suppress prejudicial evidence ( id. ).
Claim Three: Officials with the Nebraska Department of Correctional Services are taking away Petitioner's good time credits in violation of the sentencing order imposed by the state district court. ( Id. at ECF 8.)

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. Accordingly,

IT IS ORDERED:

1. Upon initial review of the habeas corpus petition (Filing No. 1), the Court preliminarily determines that Petitioner's claims, as they are set forth in this Memorandum and Order, are potentially cognizable in federal court.

2. The Clerk's office is directed to mail copies of this Memorandum and Order and the habeas corpus petition to Respondent and the Nebraska Attorney General by regular first-class mail.

3. By March 2, 2015, Respondent must file a motion for summary judgment or state court records in support of an answer. The Clerk's office is directed to set a pro se case management deadline in this case using the following text: March 2, 2015: 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 must be followed by Respondent and Petitioner:

A. The motion for summary judgment must be accompanied by a separate brief, submitted at the time the motion is filed;
B. The motion for summary judgment must be supported by any state court records that are necessary to support the motion. Those records must 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 must be served on Petitioner except that Respondent is only required to provide Petitioner with a copy of the specific pages of the record that 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. ...

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