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Robertson v. Frakes

United States District Court, D. Nebraska

July 31, 2017

KEENON A. ROBERTSON, Petitioner,
v.
SCOTT FRAKES, Director of Nebraska Department of Correctional Services; Respondent.

          MEMORANDUM AND ORDER

          Richard G. Kopf Senior United States District Judge.

         This matter is before the court on preliminary review of Petitioner Keenon A. Robertson's 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 his rights to present a complete defense, to a fair trial, to due process, to equal protection, and to effective assistance of counsel under the Fifth, Sixth, and Fourteenth Amendments of the U.S. Constitution because (1) trial counsel failed to object and argue that the trial court violated Petitioner's “U.S. Constitution and federal law rights” when it failed to give a “defense of others” jury instruction; (2) appellate counsel failed to argue on direct appeal that Petitioner was prejudiced “under the U.S. Constitution and federal law” when the trial court failed to give the “defense of others” jury instruction; and (3) appellate counsel failed to argue on direct appeal subpart (1).
Claim Two: Petitioner was denied his rights to a fair trial, a complete defense, due process, and effective assistance of counsel under the Fifth, Sixth, and Fourteenth Amendments of the U.S. Constitution because trial counsel failed to move for a mistrial after discovering juror misconduct.
Claim Three: Petitioner was denied his right to effective assistance of counsel under the Sixth and Fourteenth Amendments of the U.S. Constitution because (1) trial counsel failed to raise that Petitioner's constitutional right to speedy trial was violated; (2) appellate counsel failed to argue on direct appeal subpart (1); and (3) appellate counsel failed to argue on direct appeal that Petitioner's constitutional right to speedy trial was violated.

         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. Respondent should be mindful of and, if necessary, respond to Petitioner's allegations in the habeas petition wherein Petitioner argues “Exhaustion” of these claims. (See Filing No. 1 at CM/ECF pp. 10-20, 25-28, 33-36.)

         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. By September 14, 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: September 14, 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 ...

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