United States District Court, D. Nebraska
JERIMIAH L. VANCE, Petitioner,
STATE OF NEBRASKA, Respondent.
MEMORANDUM AND ORDER
RICHARD G. KOPF SENIOR UNITED STATES DISTRICT JUDGE.
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
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.”
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 court.
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.
Respondent elects to file a motion for summary judgment, the
following procedures must be followed by Respondent 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
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 ...