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Engstrom v. Franks

United States District Court, D. Nebraska

May 19, 2017

MICHAEL ENGSTROM, Petitioner,
v.
SCOTT FRANKS, Respondent.

          MEMORANDUM AND ORDER

          Richard G. Kopf Senior United States District Judge.

         The 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.

         Condensed and summarized for clarity, the claims asserted by Petitioner are:

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 condition.

         Liberally 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.

         IT IS THEREFORE ORDERED that:

         1. Upon initial review of the Petition (Filing No. 1), the court preliminarily determines that Petitioner's claims are potentially cognizable in federal court.

         2. By 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 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. 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 ...

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