United States District Court, D. Nebraska
GATDET G. CHUOL, Petitioner,
SCOTT FRAKES, Director, and FRED BRITTEN, Warden, Respondents.
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 effective assistance of trial counsel because Petitioner’s attorney (1) failed to object to the prosecutor’s breach of the plea agreement at sentencing; (2) failed to move to withdraw the plea agreement due to the prosecutor’s breach of the agreement; and (3) failed to ensure that Petitioner understood the plea agreement.
Claim Two: Petitioner was denied effective assistance of counsel during the post-conviction proceedings because counsel (1) failed to fully investigate the facts; (2) failed to argue that Petitioner was not sufficiently advised of his right against self-incrimination; and (3) failed to argue that Petitioner did not understand the plea agreement.
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 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. By May 26, 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: May 26, 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. 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 ...