United States District Court, D. Nebraska
SONNY D. BALVIN, Petitioner,
SCOTT FRAKES, Respondent.
MEMORANDUM AND ORDER
LAURIE SMITH CAMP, Chief District Judge.
Petitioner filed a Petition for Writ of Habeas Corpus (Filing No. 1) on February 17, 2015. The Court now conducts a preliminary review of the habeas corpus petition to determine whether the claims made by Petitioner are, when liberally construed, potentially cognizable in federal court. Condensed and summarized for clarity, Petitioner's claims are as follows:
Claim One: Petitioner was denied the effective assistance of counsel in violation of the Sixth and Fourteenth Amendments because trial counsel (a) failed to impeach Petitioner's accuser at trial ( id. at ECF 5); and (b) failed to raise a hearsay objection when the prosecution offered evidence of "recorded telephone conversations" between Petitioner and two other parties ( id. at ECF 7-8).
Claim Two: Petitioner was denied the effective assistance of counsel in violation of the Sixth and Fourteenth Amendments because appellate counsel failed to argue that (a) trial counsel was ineffective for failing to impeach Petitioner's accuser ( id. at ECF at 5); (b) trial counsel was ineffective for failing to raise a hearsay objection when the prosecution offered evidence of "recorded telephone conversations" between Petitioner and two other parties ( id. at ECF 7-8); (c) the trial court erred in admitting evidence of letters from Petitioner to his former girlfriend ( id. at ECF 9); and (d) the trial court erred in admitting testimony by Petitioner's fiance concerning her sexual relationship with Petitioner ( id. at ECF 11-12).
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 order, are potentially cognizable in federal court.
2. The Clerk of the Court is directed to mail copies of this order and the habeas corpus petition to Respondent and the Nebraska Attorney General by regular first-class mail.
3. By June 8, 2015, Respondent must 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: June 8, 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. Such motion must 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 must file and serve a brief in opposition to the motion for summary judgment. Petitioner may not submit ...