United States District Court, D. Nebraska
ANTHONY W. GARDNER, Petitioner,
STATE OF NEBRASKA, Respondent.
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge
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
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.
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.
THEREFORE ORDERED that:
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
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.
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. ...