United States District Court, D. Nebraska
TIMOTHY W. WILSON, Petitioner,
SCOTT FRANKS, Respondent.
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge
matter is before the court on preliminary review of
Petitioner Timothy W. Wilson'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
One: Petitioner was denied his rights to due process and
effective assistance of counsel under the 6th and 14th
Amendments when the trial court denied his request for new
counsel and permitted counsel to continue to represent
Petitioner despite counsel's failure to appear at the
hearing for new counsel.
Two: Petitioner was denied effective assistance of counsel
because trial counsel (1) failed to communicate with
Petitioner regarding the charges he faced and the contents of
discovery which would have allowed Petitioner “to make
a proper and informed choice” (Filing No. 1 at
CM/ECF pp.7, 17); (2) failed to object to venue
where not all of the offenses charged occurred in Scotts
Bluff County; (3) failed to challenge the State's
violation of Petitioner's due process rights to an
initial appearance within 48 hours of his warrantless arrest;
(4) failed to quash or suppress the illegal and invalid
search warrants; (5) failed to suppress Petitioner's
inculpatory statement and challenge the statement's
admissibility as involuntary; and (6) failed to investigate
another probable suspect.
Three: Petitioner was denied his right to due process under
the 14th Amendment because the state failed to place any
evidence on the record supporting Petitioner's conviction
for creation of a visual depiction of sexually explicit
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
May 14, 2018, Respondents 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 14, 2018: deadline for Respondents
to file state court records in support of answer or motion
for summary judgment.
Respondents elect to file a motion for summary judgment, the
following procedures must be followed by Respondents 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
Respondents' brief must be served on Petitioner
except that Respondents are only required to provide
Petitioner with a copy of the specific pages of the record
that are cited in Respondents' 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 ...