Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Abdulkadir v. Frakes

United States District Court, D. Nebraska

July 13, 2017

MOHAMED ABDULKADIR, Petitioner,
v.
SCOTT R. FRAKES, Director of Corrections; and BRAD HANSEN, Warden at TSCI; Respondents.

          MEMORANDUM AND ORDER

          RICHARD G. KOPF SENIOR UNITED STATES DISTRICT JUDGE.

         This matter is before the court on preliminary review of Petitioner Mohamed Abdulkadir's Amended Petition for Writ of Habeas Corpus (Filing No. 4) and Supplemental Petition (Filing No. 9) 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 a fair trial because the trial court erroneously instructed the jury (1) on “Sudden Quarrel” in Instruction No. VI, specifically, “The test is an objective one. Qualities peculiar to the defendant which render him or her particularly excitable are not considered”; (2) on “Intent” in Instruction No. V; and (3) on Instruction No. IX, specifically, “You are to use your common sense and general knowledge that everyone has in determining the meaning of any other term not defined above.”
Claim Two: Petitioner was denied effective assistance of counsel because trial counsel (1) introduced Petitioner's statements made to a corrections employee as evidence during Petitioner's testimony at trial despite the trial court having suppressed those statements under Miranda; (2) made statements and questions at trial about Petitioner's religious beliefs and place of origin, specifically comparing Petitioner's religious beliefs to those who were involved and carried out “9/11”; and (3) failed to object to the jury instructions identified in Claim One.
Claim Three: Petitioner was denied effective assistance of counsel because appellate counsel failed to raise the jury instructions identified in Claim One as error on direct appeal.
Claim Four: Petitioner's determinate life-to-life sentence for second degree murder violates the ex post facto clause because the statute requires an indeterminate sentence of 20 years - life.

         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. Respondents should be mindful of and, if necessary, respond to Petitioner's allegations in his amended and supplemental petitions of his reasons for not presenting these claims to the state courts. (See Filing No. 4 at CM/ECF pp. 5, 6, 12; Filing No. 9 at CM/ECF pp. 4-5.)

         IT IS THEREFORE ORDERED that:

1. Upon initial review of the amended and supplemental habeas corpus petitions (Filing Nos. 4, 9), the court preliminarily determines that Petitioner's claims are potentially cognizable in federal court.
2. By August 28, 2017, Respondents 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 28, 2017: deadline for Respondents to file state court records in support of answer or motion for summary judgment.
3. If Respondents elect to file a motion for summary judgment, the following procedures must be followed by Respondents 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 Respondents' brief must be served on Petitioner except that Respondents are only required to provide Petitioner with a copy of the specific pages of the record that are cited in Respondents' 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. ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.