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King v. Kenney

United States District Court, D. Nebraska

March 18, 2015

DONNELL KING, a Inmate at the Nebraska State Penitentiary, Petitioner,
v.
MICHAEL KENNEY, Director of the Nebraska Department of Correctional Services, and JON BRUNING, The Attorney General of the State of Nebraska, et al., Respondents.

MEMORANDUM AND ORDER

LAURIE SMITH CAMP, Chief District Judge.

The Court has conducted an initial review of the Petition for Writ of Habeas Corpus (Filing No. 1) to determine whether the claims made by Petitioner Donnell King ("Petitioner" or "King") are, when liberally construed, potentially cognizable in federal court. Condensed and summarized for clarity, King raised the following claims in his habeas corpus petition:

Claim One: King was denied due process when the state district court imposed a greater sentence following King's successful appeal of the state district court's earlier sentences. (Filing No. 1 at ECF 5-11.)
Claim Two: King was denied due process when the Nebraska Supreme Court held King's new sentence was functionally equivalent to his original sentence. ( Id. at ECF 12-14.)
Claim Three: King was denied due process when the Nebraska Supreme Court determined his sentence was not imposed in violation of the United States Supreme Court's holding in North Carolina v. Pearce. ( Id. at ECF 15-20.)
Claim Four: King was denied due process when the Nebraska Court of Appeals determined it did not have jurisdiction over King's appeal. ( Id. at ECF 20-23.)

The Court determines that these claims, when liberally construed, are potentially cognizable in federal court. However, the Court cautions King 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 King 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 King's claims 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 Respondents and the Nebraska Attorney General by regular first-class mail.

3. By May 4, 2015, Respondents 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: May 4, 2015: deadline for Respondents to file state court records in support of answer or motion for summary judgment.

4. If Respondents elect to file a motion for summary judgment, the following procedures must be followed by Respondents 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 Respondents' brief must be served on Petitioner except that Respondents are only required to provide Petitioner with a copy of the specific pages of the record that are cited in Respondents' 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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