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Freemont v. State of Nebraska

United States District Court, D. Nebraska

August 29, 2018

RUFUS BLAINE FREEMONT, Petitioner,
v.
STATE OF NEBRASKA, and DOUGLAS COUNTY, Respondents.

          MEMORANDUM AND ORDER

          RICHARD G. KOPF SENIOR UNITED STATES DISTRICT JUDGE.

         This 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 are:

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.

         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. 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.)

         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 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.

         3. If Respondents elect to file a motion for summary judgment, the following procedures must be followed by Respondents 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 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 the court.
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 ...

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