United States District Court, D. Nebraska
ADAM R. BURNS, Petitioner,
SCOTT R. FRAKES, Respondent.
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge.
matter is before the court on preliminary review of
Petitioner Adam R. Burns' 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 the right to due process
because law enforcement used impermissible
procedures to have him identified.
Claim Two: Petitioner was denied the right to due process
because his pleas were involuntary because
of erroneous advice from trial counsel.
Claim Three: Petitioner was denied the right to effective
assistance of counsel because trial counsel (1)
failed to advise him of his right to a jury trial, (2) failed
to investigate, and (3) failed to file a motion to suppress
concerning the impermissible identification procedures and
the Miranda violation.
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
clerk of the court is directed to mail copies of this
Memorandum and Order and the habeas corpus petition to
Respondent and the Nebraska Attorney General by regular
August 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: August 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 ...