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Rush v. Thurber

United States District Court, D. Nebraska

June 15, 2016

CLIFFORD LOUIS RUSH, Petitioner,
v.
MICHAEL THURBER, Director, Respondent.

          MEMORANDUM AND ORDER

          Richard G. Kopf Senior United States District Judge

         The court has conducted a review of Petitioner's Amended Petition for Writ of Habeas Corpus (Filing No. 5) to determine whether the claims made by Petitioner are, when liberally construed, potentially cognizable in federal court. Petitioner has made four claims.

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

         Claim One: Petitioner was denied the right to confront his accuser by the state trial court.

         Claim Two: Petitioner was deprived effective assistance of trial counsel because Petitioner's attorney (1) conspired with the prosecution to obtain a conviction; (2) failed to object to the violation of Petitioner's right to confrontation; (3) failed to object to the use of certain photographs at trial; and (4) failed to obtain police reports.

         Claim Three: Petitioner was denied the right to file an appeal.

         Claim Four: Petitioner is actually innocent.

         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 Amended Petition (Filing No. 5), the court preliminarily determines that Petitioner's claims are potentially cognizable in federal court.

         2. By August 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: August 1, 2016: deadline for Respondent to file state court records in support of answer or motion for summary judgment.

         3. 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 ...

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