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Vance v. State

United States District Court, D. Nebraska

September 13, 2018

JERIMIAH L. VANCE, Petitioner,
v.
STATE OF NEBRASKA, Respondent.

          MEMORANDUM AND ORDER

          RICHARD G. KOPF SENIOR UNITED STATES DISTRICT JUDGE.

         This matter is before the court on preliminary review of Petitioner Vance'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: Ineffective Assistance of Counsel claim. “Public defender did not administer depositions as I pleaded he do, did not preserve the secrets I divulged about specifics of this case, did not bring up the fact the prosecutor and state's witness were seen numerous times riding on elevator with jurors from my panel, did not add all issues I wrote to him in the direct appeal.”[1]
CLAIM TWO: Ineffective Assistance of Counsel claim. “My public defender did not investigate alternative suspects in DNA spot found on blanket, did not interview prosecution witnesses nor alleged victim, failed to investigate experts' opinions, failed to object to highly prejudicial statements made by prosecutor during opening statements, failed to examine state's ‘key witness.'”
CLAIM THREE: Judicial Misconduct (a Due Process of Law) claim. “Allowing hearsay statements, allowed alleged victim to continue testimony although they stated they did not know undesirable consequences could follow from telling an untruth, allowed jury instruction #9 even though constitutionally defective, allowing a jury conviction without evidence to back it up.”
CLAIM FOUR: Prosecutorial Misconduct (a Due Process of Law) claim. “Rode in elevator with potential jurors during voir dire and also during deliberations (2 days), and instructed alleged victim what to say.”[2]

         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 October 29, 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: October 29, 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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