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Lee v. Nebraska Department of Correctional Service

United States District Court, D. Nebraska

May 17, 2016

DONALD M. LEE, Petitioner,
v.
NEBRASKA DEPARTMENT OF CORRECTIONAL SERVICE, SCOTT R. FRAKES, Department of Correction, and UNKNOWN PRISON OFFICIAL, 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.[1] It appears Petitioner has made four claims.

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

Claim One: Petitioner was denied his right to a speedy trial.
Claim Two: Petitioner’s plea (‘no contest’) was not knowing, intelligent and voluntary because (a) the plea was entered after his right to a speedy trial had been violated and (b) the judge failed to make the proper inquiry.
Claim Three: Petitioner’s trial counsel was ineffective because (a) counsel failed to investigate; (b) counsel failed to advise Petitioner of his right to a speedy trial; (c) counsel waived Petitioner’s rights without consulting Petitioner regarded an amended information; (d) counsel failed to advise the Petitioner that he had a right to an inquiry from the judge prior to accepting the plea; (e) counsel failed to move for dismissal as a result of the speedy trial violation; and (f) counsel failed to make an adequate record to preserve Petitioner’s claims.
Claim Four: Petitioner’s counsel on appeal was ineffective because: (a) counsel failed to raise a claim that the plea was not knowing, intelligent and voluntary; (b) counsel failed to argue that the plea was invalid because it followed the violation of Petitioner’s speedy trial rights; (c) counsel failed to argue that the amended information was invalid and not properly served on the Petitioner; (d) counsel failed to argue that the plea was invalid because the judge did not make a proper inquiry when accepting the plea; and (e) counsel failed to timely respond to Nebraska’s motion for summary affirmance.

         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 July 1, 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: July 1, 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 ...

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