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Dubray v. Hansen

United States District Court, D. Nebraska

February 21, 2017

DOMINICK DUBRAY, Petitioner,
v.
BRAD HANSEN, Warden Tecumseh Prison, Respondent.

          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. It appears Petitioner has made five claims.

         This is the second habeas petition filed Petitioner.[1] The first one was recently dismissed without prejudice for failure to comply with Rule 4 within the time set by the undersigned. That dismissal does, however, render this petition a second or successive petition requiring approval of the Court of Appeals under the provisions of 28 U.S.C. § 2244(3)(A). See Slack v. McDaniel, 529 U.S. 473, 486 (2000).

         With one exception, Claim 4 attacks “Trial Court Errors” but the grounds are poorly articulated and they fail to clearly state a federal claim-the federal courts do not serve to correct state trial court errors that do not violate established federal law. Claim 5 pertaining to “Actual Innocence” is not a stand-alone federal claim, but a means of avoiding procedural default. Thus, except as indicated below, these claims are dismissed with prejudice.

         The foregoing leaves four claims that require a response. Condensed and summarized for clarity, those claims are:

Claim One: Petitioner was denied effective assistance of trial counsel for the 9 reasons set forth in Attachment A appearing at filing no. 1, CM/ECF p. 6.
Claim Two: Petitioner was denied effective assistance of appellate counsel because Petitioner's appellate attorney (1) failed to raise issues of competency and insanity or to attack trial counsel for failing to do so; (2) failed to appeal the denial of a suppression motion; (3) failed to raise the existence of biased pro prosecution witnesses; and (4) failed to attack trial counsel for lack of a zealous defense such as the failure to present lay or expert witnesses.[2]
Claim Three: Petitioner was denied due process of law as a result of prosecutorial misconduct in that: (1) the prosecutor failed to turn over exculpatory notes of several witnesses some or all of whom may have been expert witnesses; (2) the prosecutor misstated the evidence in closing argument; (3) the prosecutor forced Petitioner to appear in court in leg shackles in front of the jury; (4) the prosecutor failed to seek a competency hearing of Petitioner; (5) the prosecutor appeared as both a prosecutor and witness; and (6) the prosecutor failed to call Megan Reza as a witness.[3]
Claim Four: The trial court denied the Petitioner due process of law when the trial judge failed to order a competency hearing sua sponte.[4]

         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, as limited above, are potentially cognizable in federal court. The other claims are dismissed with prejudice.

         2. By March 24, 2017, 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: March 24, 2017: 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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