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Garibo v. State

United States District Court, D. Nebraska

October 10, 2018

ARMANDO GARIBO, Petitioner,
v.
STATE OF NEBRASKA, and BRAD HANSEN, Institution's Warden, Respondents.

          MEMORANDUM AND ORDER

          RICHARD G. KOPF, SENIOR UNITED STATES DISTRICT JUDGE

         This matter is before the court on preliminary review of Petitioner Garibo's Amended Petition for Writ of Habeas Corpus (Filing No. 7) 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.

         Petitioner has two claims. The first claim attacks a jury instruction and raises only state law questions. It will be dismissed because federal habeas corpus relief cannot be predicated upon an alleged violation of state law. The second claim, however, will be progressed. Condensed and summarized for clarity, Petitioner's remaining claim is:

Claim One (previously Claim Two): Trial counsel was ineffective in one or more of the ways articulated at CM/ECF p. 17 of the Amended Petition.

         The court determines that this claim, when liberally construed, is potentially cognizable in federal court. However, the court cautions Petitioner that no determination has been made regarding the merits or any defenses 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 amended habeas corpus petition (Filing No. 7), the court determines that:

A. Petitioner's claim of ineffective assistance of trial counsel, as set forth in this Memorandum and Order, is potentially cognizable in federal court.
B. Petitioner's claim regarding the propriety of a jury instruction is dismissed without prejudice as it raises no federal violation but rather raises only a violation of state law.

         2. By November 27, 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: November 27, 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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