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Gardner v. State

United States District Court, D. Nebraska

March 21, 2017

ANTHONY W. GARDNER, Petitioner,
v.
STATE OF NEBRASKA, Respondent.

          MEMORANDUM AND ORDER

          Richard G. Kopf Senior United States District Judge

         This matter is before the court on preliminary review of Petitioner Anthony W. Gardner's Petition for Writ of Habeas Corpus (Filing No. 1) brought pursuant to 28 U.S.C. § 2254. The purpose of this review is to determine whether Petitioner's claims, when liberally construed, are potentially cognizable in federal court. Condensed and summarized for clarity, Petitioner's claims are:

Claim One: Petitioner's convictions were obtained by use of evidence gained pursuant to an unconstitutional search and seizure because the search warrant was invalid for the following reasons: (1) the search warrant was dated November 12, 2014, but the search occurred on November 8, 2014, after Petitioner was arrested and in custody; (2) the addresses listed in the search warrant for the vehicles searched were incorrect; and (3) there is no evidence that Petitioner was the owner of the motor home.
Claim Two: Petitioner's convictions were obtained by malicious prosecution for the following reasons: (1) not all of the pages of the Morrill County Sheriff's Office inventories listed the description of items or dates of searches; (2) Petitioner was charged with possessing six different firearms but law enforcement listed only one on the official inventory list; and (3) some of the firearms were returned to their owners.
Claim Three: Petitioner was denied effective assistance of counsel when appellate counsel failed to raise Claims One and Two on direct appeal.
Claim Four: Petitioner was denied effective assistance of counsel when trial counsel allowed the prosecution and law enforcement coerce Petitioner into a plea agreement.

         The court determines that these claims, when liberally construed, are potentially cognizable in federal court. However, the court cautions Petitioner that no determination has been made regarding the merits of these claims or any defenses to them 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 habeas corpus petition (Filing No. 1), the court preliminarily determines that Petitioner's claims, as they are set forth in this Memorandum and Order, are potentially cognizable in federal court.

         2. By May 5, 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: May 5, 2017: 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. ...

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