United States District Court, D. Nebraska
DONALD M. LEE, Petitioner,
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
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. It appears Petitioner has made four
and summarized for clarity, the claims asserted by Petitioner
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.
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.
THEREFORE ORDERED that:
initial review of the Petition (Filing No. 1), the
court preliminarily determines that Petitioner’s claims
are potentially cognizable in federal court.
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.
Respondent elects to file a motion for summary judgment, the
following procedures must be followed by Respondent and
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