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Johnson v. State

United States District Court, D. Nebraska

July 14, 2016

BRANDON R. JOHNSON, Petitioner,
v.
STATE OF NEBRASKA, and MARIO PEART, 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.

         Condensed and summarized for clarity, it appears the claims asserted by Petitioner are as follows:

Claim One: Petitioner's trial counsel was ineffective because counsel (a) failed to file a motion to suppress; (b) failed to investigate the underlying facts, failed to call key witnesses, and failed to investigate criminal history of witnesses; (c) failed to consult experts in ballistics and pathology; (d) failed to raise an alibi defense; (e) failed to investigate Petitioner's mental health; (f) failed to assert that Petitioner was not given his Miranda rights and law enforcement improperly interrogated him while he was mentally ill and under the influence of drugs; and (g) failed to properly advise Petitioner of the maximum sentence that could be imposed.
Claim Two: The evidence was insufficient to find him guilty beyond a reasonable doubt.
Claim Three: Petitioner's right to due process was violated because he was mentally ill and heavily medicated with both legal and illegal substances at the time of the plea and sentencing.

         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 August 27, 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 27, 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 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. ...

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