United States District Court, D. Nebraska
KEENON A. ROBERTSON, Petitioner,
SCOTT FRAKES, Director of Nebraska Department of Correctional Services; Respondent.
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge.
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
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.
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,
THEREFORE ORDERED that:
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
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
Respondent elects to file a motion for summary judgment, the
following procedures must be followed by Respondent and
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 ...