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Rice v. Hansen

United States District Court, D. Nebraska

July 5, 2017

MARK RICE, Petitioner,
v.
BRAD HANSEN, 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.

         Petitioner has made three claims. The first two-relating to the failure to give instructions on the pertinent law of the case and the failure to allege the month, day and term of court on the charging document-do not raise federal constitutional claims despite Petitioner's attempt to style them as “due process” claims. These are state law claims only. However, the remaining ineffective assistance of trial and appellate counsel claim, described below, may proceed, to wit:

         Remaining Claim: (1) Petitioner's trial counsel was constitutionally ineffective for failing to object to (a) the failure of the jury instruction to state the pertinent law of the case and (b) the defective amended charging document; and (2) Petitioner's appellate counsel was constitutionally ineffective for failing to assign as error and argue the foregoing errors during the direct appeal.

         The court cautions that no determination has been made regarding the merits of this claim 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 August 21, 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 21, 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 documents unless directed to do so by the court.
E. No later than 30 days after Petitioner's brief is filed, Respondent must file and serve a reply brief. In the event that Respondent elects not to file a reply brief, he should inform the court by filing a notice stating that he will not file a reply brief ...

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