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Abdulkadir v. Frakes
United States District Court, D. Nebraska
July 13, 2017
MOHAMED ABDULKADIR, Petitioner,
SCOTT R. FRAKES, Director of Corrections; and BRAD HANSEN, Warden at TSCI; Respondents.
MEMORANDUM AND ORDER
RICHARD G. KOPF SENIOR UNITED STATES DISTRICT JUDGE.
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
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
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
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.
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.
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
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. ...
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