United States District Court, D. Nebraska
Richard G. Kopf Senior United States District Judge.
matter is before the court on preliminary review of
Petitioner Gardner'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 was the subject of an illegal search
and seizure and an illegal interrogation in violation of the
Fourth and Fifth Amendments.
CLAIM TWO: Petitioner was subjected to double jeopardy in
violation of the Fifth Amendment.
CLAIM THREE: The declaration of a mistrial and the subsequent
proceedings violated Petitioner's due process rights
under the Fourteenth Amendment.
CLAIM FOUR: In violation of the Sixth Amendment, Petitioner
was denied effective assistance of trial counsel and the
district court failed to appoint appellate counsel after
allowing trial counsel to withdraw or if appellate counsel
was appointed then appellate counsel was ineffective.
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.
May 10, 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: May 10, 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 ...