United States District Court, D. Nebraska
MEMORANDUM AND ORDER
RICHARD G. KOPF SENIOR UNITED STATES DISTRICT JUDGE.
matter is before the court on preliminary review of
Petitioner Rufus Blaine Freemont'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
Claim One: Petitioner was denied effective assistance of
counsel because trial counsel (1) failed to elicit
evidence and testimony from witnesses to support theory that
a third party fired the shots; (2) failed to object to
inadmissible identification evidence; (3) failed to request
cautionary jury instruction regarding accomplice testimony;
(4) failed to object to and ask for mistrial based on
State's closing argument regarding Petitioner's
“consciousness of guilt”; (5) failed to request
continuance or create a deposition outside the presence of
the jury when the State provided an untimely ballistics
report; (6) failed to adduce significant forensic evidence
regarding bullet trajectory; (7) failed to elicit evidence on
Petitioner's lack of motive; (8) failed to object to
testimony by Dan Marin regarding post-Miranda statements of
Samantha Vawter that were not made available in pretrial
discovery; and (9) failed to make Petitioner aware of his
speedy trial rights.
Claim Two: Petitioner was denied effective assistance of
counsel because trial and appellate counsel failed to argue
for a sudden quarrel jury instruction when all the evidence
supported a manslaughter conviction.
Claim Three: Failure to include a sudden quarrel jury
instruction amounts to a violation of Petitioner's right
to Due Process under the Fourteenth Amendment.
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. Respondents
should be mindful of and, if necessary, respond to
Petitioner's allegations in the habeas petition regarding
dismissal of his state postconviction appeal due to his
attorney's failure to pay the appellate filing fee.
(See Filing No. 1 at CM/ECF pp. 4, 15.)
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
October 15, 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: October 15, 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 documents unless directed to do so by
E. No later than 30 days after Petitioner's brief is
filed, Respondents must file and serve a reply brief. In the
event that Respondents elect not to file a reply brief, they
should inform the court by filing a notice stating that they
will not file a reply ...