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Jackson v. Frakes

United States District Court, D. Nebraska

February 23, 2016

DENNIS C. JACKSON, Petitioner,
v.
SCOTT FRAKES, Director, 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 seven claims.

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

Claim One: Petitioner was deprived effective assistance of counsel in violation of the Sixth and Fourteenth Amendments because Petitioner’s appellate counsel (1) failed to file a motion for rehearing in the Nebraska Court of Appeals; (2) failed to raise the issue of prosecutorial misconduct; (3) failed to assert that trial counsel was ineffective by failing to object to, request a curative instruction, or move for mistrial due to prosecutorial misconduct; (4) failed to allege that trial counsel was ineffective by not adequately preparing for trial, not conducting a thorough investigation, and by failing to interview and locate certain witnesses; (5) failed to allege that trial counsel was ineffective by not arguing that a witness was incompetent to testify; (6) failed to raise trial counsel’s failure to interview Petitioner regarding his trial testimony; (7) failed to raise trial counsel’s failure to obtain telephone records; (8) represented Petitioner despite having a conflict of interest; (9) failed to assert that the evidence was insufficient to convict Petitioner; (10) failed to argue that the jury instructions were improper; (12) failed to argue that the order on Petitioner’s motion in limine was violated; and (13) failed to raise nine issues on petition for further review in the proper format and constitutional context.

Claim Two: Petitioner was denied effective assistance of trial counsel in violation of the Sixth and Fourteenth Amendments because trial counsel (1) failed to object to, request a curative instruction, or move for mistrial due to prosecutorial misconduct; (2) failed to adequately prepare for trial, investigate, interview, examine, locate, and subpoena certain witnesses; (3) failed to argue that a witness was not competent to testify at trial; (4) failed to fully interview Petitioner in relation to his testimony at trial; and (5) failed to obtain telephone records.

Claim Three: Petitioner was denied a fair trial due to prosecutorial misconduct.

Claim Four: The cumulative effect of the prosecutorial misconduct, ineffective assistance of trial counsel, and ineffective assistance of appellate counsel denied Petitioner due process.

Claim Five: Petitioner was denied effective assistance of counsel at sentencing because counsel (1) failed to review the pre-sentence report and discuss the report with Petitioner; (2) failed to investigate whether the information in the pre-sentence investigation report regarding Petitioner’s prior criminal convictions was accurate; and (3) failed to raise the inaccuracies of Petitioner’s prior criminal history and request an evidentiary hearing to correct the errors as requested by Petitioner.

Claim Six: Petitioner was denied due process when the trial court failed to inquire if Petitioner had the opportunity to read the pre-sentence investigation report and sentenced him based on an inaccurate criminal history.

Claim Seven: Petitioner was convicted based on insufficient evidence.

Liberally construed, the court preliminarily decides that Petitioner’s seven 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 ...


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