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Friend v. Martin

United States District Court, D. Nebraska

December 20, 2017

DAVID E. FRIEND, Petitioner,
v.
TODD MARTIN, Warden, WYOMING HONOR CONSERVATION CAMP, and THE ATTORNEY GENERAL OF THE STATE OF NEBRASKA, Respondents.

          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 one claim.

         Condensed and summarized for clarity, the claim asserted by Petitioner is:

         Claim One: The Petitioner was denied effective assistance of counsel under the Constitution because: (a) counsel did not challenge the predicate crimes used to enhance the sentence; (b) counsel failed to request a proportionality review of the sentence imposed as compared to other sentences in the state district court where the sentence was imposed and in other Nebraska state district courts; and (c) counsel failed to request an additional mental health evaluation after receiving an evaluation that pointed to underlying mental health problems.[1]

         Liberally construed, the court preliminarily decides that Petitioner's claim is potentially cognizable in federal court. However, the court cautions that no determination has been made regarding the merits of this claim 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 claim is potentially cognizable in federal court.

         2. By February 5, 2018, 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: February 5, 2018: 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 claim.
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 documents unless directed to do so by the court.
E. No later than 30 days after Petitioner's brief is filed, Respondent must file and serve a reply brief. In the event that Respondent elects not to file a reply brief, he should inform the court by filing a notice stating that he will not file a reply brief ...

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