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Burns v. Frakes

United States District Court, D. Nebraska

June 21, 2017

ADAM R. BURNS, Petitioner,
v.
SCOTT R. FRAKES, Respondent.

          MEMORANDUM AND ORDER

          Richard G. Kopf Senior United States District Judge.

         This 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.

         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, as they are set forth in this Memorandum and Order, are potentially cognizable in federal court.

         2. The 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 first-class mail.

         3. By 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.

         4. 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 ...

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