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Higel v. Frakes

United States District Court, D. Nebraska

October 11, 2016

JAIME L. HIGEL, Petitioner,
v.
SCOTT R. FRAKES, and DENISE SCROBECKI, 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. Petitioner has made four claims.

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

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 character evidence.
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 review.

         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. The 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 first-class mail.

         3. By 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 judgment.

         4. If Respondents elect to file a motion for summary judgment, the following procedures must be followed by Respondents and Petitioner:

A. The motion for summary judgment must be accompanied by a separate brief, submitted at the ...

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