United States District Court, D. Nebraska
RICKY J. SANDERS, Petitioner,
RICHARD CRUICKSHANK, Warden Nebraska Penitentiary; and SCOTT R. FRAKES, Director Nebraska Department of Correctional Services; Respondents.
MEMORANDUM AND ORDER
RICHARD G. KOPF SENIOR UNITED STATES DISTRICT JUDGE.
matter is before the court on preliminary review of
Petitioner Ricky J. Sanders' 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 was denied effective assistance of
counsel because (1) trial and appellate counsel
(same counsel) failed to motion to quash the Information on
the ground that Neb. Rev. Stat. § 28-1212.04 is
facially unconstitutional under equal protection, and (2)
trial and appellate counsel (same counsel) failed to file a
motion to suppress the illegal search and seizure of
Petitioner and his passenger, as well as the illegal search
of Petitioner's vehicle.
Claim Two: Petitioner's convictions are void
because Neb. Rev. Stat. § 28-1212.04
is facially unconstitutional under equal protection.
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 are potentially cognizable in federal
May 19, 2017, Respondents 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 19, 2017: deadline for Respondents
to file state court records in support of answer or motion
for summary judgment.
Respondents elect to file a motion for summary judgment, the
following procedures must be followed by Respondents 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
Respondents' brief must be served on Petitioner
except that Respondents are only required to provide
Petitioner with a copy of the specific pages of the record
that are cited in Respondents' 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 documents unless directed to do so by
E. No later than 30 days after Petitioner's brief is
filed, Respondents must file and serve a reply brief. In the
event that Respondents elect not to file a reply brief, they
should inform the court by filing a notice stating that they
will not file a reply ...