United States District Court, D. Nebraska
BRANDON R. JOHNSON, Petitioner,
STATE OF NEBRASKA, and MARIO PEART, Warden, 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.
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.
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.
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.
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 file a motion with the court
requesting additional documents. ...