United States District Court, D. Nebraska
DAVID E. FRIEND, Petitioner,
TODD MARTIN, Warden, WYOMING HONOR CONSERVATION CAMP, and THE ATTORNEY GENERAL OF THE STATE OF NEBRASKA, Respondents.
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 one claim.
and summarized for clarity, the claim asserted by Petitioner
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.
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.
IS THEREFORE ORDERED that:
initial review of the Petition (Filing No. 1), the court
preliminarily determines that Petitioner's claim is
potentially cognizable in federal court.
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
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 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
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 ...