United States District Court, D. Nebraska
JAIME L. HIGEL, Petitioner,
SCOTT R. FRAKES, and DENISE SCROBECKI, 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.
Petitioner has made four claims.
and summarized for clarity, the claims asserted by Petitioner
Claim One: Petitioner was the victim of prosecutorial
misconduct because the prosecution breached the plea
agreement by asking for a consecutive sentence.
Claim Two: Petitioner's guilty plea was not knowingly,
intelligently, and voluntarily made.
Claim Three: Petitioner was denied effective assistance of
trial counsel because Petitioner's attorney (1) failed to
accurately relay the terms of the plea agreement; (2) did not
review the presentence report with Petitioner; (3) did not
get the sentencing agreement on the record; (4) failed to
file a motion to withdraw guilty plea; (5) failed to properly
investigate the case and prepare a defense; (6) failed to
file a motion to suppress evidence; (7) had a conflict of
interest; and (8) failed to present Petitioner's
Claim Four: Petitioner was denied effective assistance of
appellate counsel because Petitioner's appellate attorney
(1) failed to raise ineffective assistance of counsel for
failing to state the sentencing agreement on the record and
(2) failed to petition the Nebraska Supreme Court for further
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.
clerk of the court is directed to mail copies of this
Memorandum and Order and the habeas corpus petition to
Respondents and the Nebraska Attorney General by regular
November 25, 2016, Respondents 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:
November 25, 2016: deadline for Respondents to file state
court records in support of answer or motion for summary
Respondents elect to file a motion for summary judgment, the
following procedures must be followed by Respondents and
A. The motion for summary judgment must be accompanied by a
separate brief, submitted at the ...