United States District Court, D. Nebraska
HECTOR A. VALLADARES MIRANDA, Petitioner,
ROBERT MADSEN, Warden of Nebraska State Penitentiary; and SCOTT FRAKES, Director of Department of Corrections; Respondents.
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge
matter is before the court on preliminary review of
Petitioner Hector A. Valladares Miranda'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
Claim One: Petitioner was denied effective assistance of
counsel during trial and appeal proceedings because counsel
(1) failed to seek the minimum amount of prison time and (2)
failed to object during sentencing to the trial court's
consideration of dismissed charges from outside the trial
Claim Two: Petitioner was denied effective assistance of
counsel because trial counsel failed to take the deposition
of the mother of the alleged victims.
Claim Three: Petitioner was denied effective assistance of
counsel because counsel failed to inform Petitioner that the
intoxication defense could have been presented as a defense.
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
August 13, 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: August 13, 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 ...