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Sanders v. Cruickshank

United States District Court, D. Nebraska

April 4, 2017

RICKY J. SANDERS, Petitioner,
v.
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.

         This 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 are:

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.

         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 are potentially cognizable in federal court.

         2. By 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.

         3. If Respondents elect to file a motion for summary judgment, the following procedures must be followed by Respondents 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 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 the court.
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 ...

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