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Gardner v. State

United States District Court, D. Nebraska

March 26, 2018

JUSTIN GARDNER, Petitioner,
v.
STATE OF NEBRASKA, Respondent.

          ORDER

          Richard G. Kopf Senior United States District Judge.

         This 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.

         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.

         IT IS THEREFORE ORDERED that:

         1. Upon 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.

         2. By 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.

         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 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 ...

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