United States District Court, D. Nebraska
PATRICK M. MIKSCH, Petitioner,
BRAD HANSEN, Warden, Respondent.
RICHARD G. KOPF SENIOR UNITED STATES DISTRICT JUDGE.
matter is before the court on preliminary review of
Petitioner Miksch'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 are:
CLAIM ONE: Petitioner's plea of no contest was
constitutionally invalid because: (1) Petitioner was
suffering from a mental illness and possessed a low IQ at the
time he entered his no contest plea; (2) Petitioner was
coerced by his trial counsel and family members into entering
a plea of no contest.
CLAIM TWO: Petitioner's trial counsel rendered
constitutionally ineffective assistance of counsel because:
(1) counsel failed to consult with Petitioner or investigate
the case, particularly Petitioner's mental health, prior
to advising Petitioner to enter a plea of no contest; (2)
counsel failed to make a record that the trial court
indicated that Petitioner was displaying symptoms of mental
illness and failed to request withdrawal of the no contest
plea upon hearing the remarks of the judge; (3) counsel
failed to discuss with Petitioner and bring to the attention
of the trial court a report from Dr. John Curran and related
information regarding Petitioner's mental health and IQ;
and (4) counsel and family members coerced the Petitioner
into entering a no contest plea.
CLAIM THREE: Petitioner's separate appellate counsel on
direct appeal rendered constitutionally ineffective
assistance of counsel because: (1) counsel failed to consult
with Petitioner regarding the appeal; and (2) counsel failed
to present on appeal CLAIM ONE and CLAIM TWO above during the
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.
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 court.
March 12, 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:
March 12, 2018: deadline for Respondent to file state court
records in support of answer or motion for summary judgment.
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 motion and brief. In the
event that the designation of state court records is deemed
insufficient by Petitioner or Petitioner needs additional
records from the designation, 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 ...