United States District Court, D. Nebraska
BOBBY J. MOSS, Petitioner,
SCOTT FRAKES, Respondent.
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. It
appears Petitioner has made three claims.
and summarized for clarity, the claims asserted by Petitioner
Claim One: Petitioner was deprived of effective assistance of
counsel because counsel failed to preserve for appeal the
constitutional challenge to Neb. Rev. Stat. Ann. §
28-392 (West) (murder of an unborn child in the second
Claim Two: Petitioner was denied effective assistance of
counsel when counsel failed to file a motion for new trial in
a timely manner after counsel learned that a defense witness
who was also a co-defendant, and who was cooperating with the
prosecution, refused to testify for Petitioner because the
prosecution told the witness, who was also a co-defendant,
that he would lose his plea deal if the witness/co-defendant
Claim Three: Petitioner was denied his Constitutional right
to call a witness/co-defendant to testify on Petitioner's
behalf because the prosecution improperly told the
witness/co-defendant that if he testified for the Petitioner
the witness/co-defendant would lose his plea deal.
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.
December 16, 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:
December 16, 2016: deadline for Respondent to file state
court records in support of answer or motion for summary
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. Such
motion must set forth the documents requested and the reasons
the documents are relevant to the cognizable claims.
D. No later than 30 days following the filing of the motion
for summary judgment, Petitioner must file and serve a brief
in opposition to the motion for summary judgment. Petitioner
may not submit other ...