United States District Court, D. Nebraska
GERALD D. SMITH, Petitioner,
FRED BRITTEN, Respondent.
MEMORANDUM AND ORDER
Richard G. Kopf, Senior United States District Judge.
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. It appears
Petitioner has made five claims.
and summarized for clarity, the claims asserted by Petitioner
Claim One: Petitioner was denied due process
of law when the trial court failed to order, on its own
motion, an evaluation of Petitioner for competency purposes.
Claim Two: Petitioner was denied due process
of law and the right to counsel when the trial court allowed
Petitioner to represent himself during part of the trial.
Claim Three: Trial counsel was ineffective
because trial counsel failed to raise the issue of
Petitioner's competency to stand trial.
Claim Four: The trial court denied
Petitioner due process of law when the court refused to issue
compulsory process to secure the attendance of
Claim Five: The trial court denied
Petitioner due process of law when the trial court denied a
motion for new trial (a) after having been apprised that
Oscar Romero was threatening Petitioner in an effort to stop
Petitioner from entering into a cooperation agreement; (b)
because the trial court would not allow Petitioner to call
his trial counsel as a witness; and (c) because the trial
court precluded Petitioner from using a video and video
equipment during trial while allowing the prosecutor to do
construed, the court preliminarily decides that
Petitioner's claims are potentially cognizable in federal
court. However, the court cautions that no determination has
been made regarding the merits of these claims or any
defenses thereto or whether there are procedural bars that
will prevent Petitioner from obtaining the relief sought.
IS THEREFORE ORDERED that:
initial review of the Petition (Filing No. 1), the court
preliminarily determines that Petitioner's claims are
potentially cognizable in federal court.
October 16, 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: October 16, 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 ...