United States District Court, D. Nebraska
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. It appears
Petitioner has made five claims.
the second habeas petition filed Petitioner. 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).
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
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
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
Claim Four: The trial court denied the Petitioner due process
of law when the trial judge failed to order a competency
hearing sua sponte.
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, as
limited above, are potentially cognizable in federal court.
The other claims are dismissed with prejudice.
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.
Respondent elects to file a motion for summary judgment, the
following procedures must be ...