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Moss v. Frakes

United States District Court, D. Nebraska

November 1, 2016

BOBBY J. MOSS, Petitioner,
v.
SCOTT FRAKES, Respondent.

          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. It appears Petitioner has made three claims.

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

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 degree).
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 testified.
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.

         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. By 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 judgment.

         3. If Respondent elects to file a motion for summary judgment, the following procedures must be followed by Respondent and Petitioner:

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 ...

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