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Khalaf v. State

United States District Court, D. Nebraska

February 23, 2016

MAMO K. KHALAF, Petitioner,
v.
STATE OF NEBRASKA, et al., Respondent.

MEMORANDUM AND ORDER

RICHARD G. KOPF SENIOR UNITED STATES 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 are, when liberally construed, potentially cognizable in federal court. Petitioner has made two claims.

Condensed and summarized for clarity, the claims asserted by Petitioner are:

Claim One: Petitioner was deprived the effective assistance of trial counsel in violation of the Sixth and Fourteenth Amendments to the United States Constitution because Petitioner’s trial attorney (1) failed to properly conduct pretrial investigation, (2) failed to fully prepare for trial; (3) misrepresented/misadvised Petitioner as to the law and potentially viable defenses; and (4) failed to file a motion to sever counts.

Claim Two: Petitioner was denied the effective assistance of appellate counsel in violation of the Sixth and Fourteenth Amendments because appellate counsel failed to argue that (1) trial counsel was ineffective by failing to locate and interview witnesses and (2) trial counsel was ineffective by failing to move to sever counts.

Liberally construed, the court preliminarily decides that both of 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 thereto or whether there are procedural bars that will prevent Petitioner from obtaining the relief sought.

IT IS THEREFORE ORDERED that:

1. Upon initial review of the Petition (filing no. 1), the court preliminarily determines that Petitioner’s claims 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 April 8, 2016, 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: April 8, 2016: 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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