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Smith v. Britten

United States District Court, D. Nebraska

August 31, 2017

GERALD D. SMITH, Petitioner,
v.
FRED BRITTEN, Respondent.

          MEMORANDUM AND ORDER

          Richard G. Kopf, Senior United States District Judge.

         The 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.

         Condensed and summarized for clarity, the claims asserted by Petitioner are:

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 Petitioner's witnesses.
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 so.

         Liberally 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.

         IT IS THEREFORE ORDERED that:

         1. Upon initial review of the Petition (Filing No. 1), the court preliminarily determines that Petitioner's claims are potentially cognizable in federal court.

         2. By 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 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 ...

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