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 two claims.
and summarized for clarity, the claims asserted by Petitioner
Claim One: Petitioner was denied the
effective of counsel because trial counsel allowed Petitioner
to enter a guilty plea and be sentenced without a mental
evaluation and while the Petitioner was on heavy medication.
Claim Two: Petitioner was denied due process
of law when the state post-conviction courts denied him
relief based upon the alleged fact that the petition for
post-conviction action was untimely, particularly when trial
and appellate counsel could not raise the mental health
issues on direct appeal because counsel in both courts was
one and the same and because no evidentiary hearing in the
post-conviction proceedings was held to determine whether the
untimely filing was due to the Petitioner's mental
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.
IS THEREFORE ORDERED that:
initial review of the Petition (Filing No. 1), the court
preliminarily determines that Petitioner's claims are
potentially cognizable in federal court.
July 3, 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: July 3, 2017: deadline for Respondent to file state
court records in support of answer or motion for summary
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. 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 ...