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Hill v. Frakes

United States District Court, D. Nebraska

August 10, 2016

SAMUEL L. HILL, Petitioner,
v.
SCOTT R. FRAKES, Dir. N.D.C.S., Respondent.

          MEMORANDUM AND ORDER

          Richard G. Kopf Senior United States District Judge.

         The court has conducted an initial review of the Amended Petition for Writ of Habeas Corpus (Filing No. 9) to determine whether the claims made by Petitioner are, when liberally construed, potentially cognizable in federal court.

         Petitioner’s claims are nearly indecipherable. As best the court can tell, the claims asserted by Petitioner are as follows:

Claim One: Petitioner’s trial, appellate, and post-conviction counsel were ineffective because they failed to challenge prejudicial jury instructions.
Claim Two: Petitioner’s trial counsel was ineffective because counsel (a) failed to adequately argue self-defense; (b) failed to adequately argue that the homicide was the result of a sudden quarrel; (c) failed to advise Petitioner of his right to testify in his own defense; (d) failed to object to the testimony of certain witnesses; (e) failed to object to statements made by the prosecutor during closing arguments about Petitioner’s involvement with narcotics; and (f) failed to call certain witnesses to testify at trial.
Claim Three: The trial court erroneously instructed the jury and denied Petitioner the right to a fair trial.
Claim Four: Appellate counsel failed to assert all issues on direct appeal.
Claim Five: The following Nebraska statutes are unconstitutional: Neb. Rev. Stat. § 28-304 and Neb. Rev. Stat. § 28-305.
Claim Six: 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. 9), the court preliminarily determines that Petitioner’s claims are potentially cognizable in federal court.

         2. By September 26, 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: September 26, 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 ...


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