United States District Court, D. Nebraska
SHAWN A. MCGUIRE, Petitioner,
BRAD HANSEN, Warden; Respondent.
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge.
matter is before the court on preliminary review of
Petitioner Shawn A. McGuire'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 the constitutional right to
a fair trial by an impartial jury because the trial
court's Instructions Nos. 9, 10, and 17 were
constitutionally defective, contained an incorrect statement
of the law on aiding and abetting, and instructed on
Claim Two: Petitioner was denied the constitutional right to
a fair trial because the evidence was insufficient to sustain
his conviction under the theory of aiding and abetting.
Claim Three: Petitioner was denied the constitutional right
to prepare a meaningful defense because he was denied the
right to subpoena witnesses including Kim Thomas, Gregory
Beninato, Paris Capalupo, Robert Nave, and Jorge Palacios.
Claim Four: Petitioner was denied effective assistance of
counsel because trial counsel (1) failed to propose
jury instructions; (2) failed to object to the trial
court's defective jury instructions; (3) failed to
investigate and depose witnesses Abdul Vann, Robert Nave, Kim
Thomas, and several others; (4) failed to conduct reasonable
discovery to gather defense evidence to rebut the State's
aiding and abetting theory; (5) failed to object to and move
to exclude the ammunition and other evidentiary items found
in or near the vehicle Petitioner was driving; (6) failed to
have the 9-mm shells tested for DNA and fingerprints to show
that Petitioner never handled the shells; (7) improperly
advised Petitioner not to testify; (8) failed to adequately
impeach and cross-examine State witness Cesar Avala-Martinez
and offer evidence to refute his testimony; and (9) failed to
offer testimonial and surveillance evidence that refuted the
Claim Five: Petitioner was denied effective assistance of
counsel because appellate counsel failed to raise
the following claims on direct appeal: (1) Petitioner was
denied his right to summon witnesses Abdul Vann, Robert Nave,
Kim Thomas, Cesar Avala-Martinez, and others for his defense;
(2) the trial court's instructions to the jury were
constitutionally defective and prejudicial; (3) Petitioner
was denied his right to a speedy trial.
Claim Six: Petitioner was denied his constitutional right to
a speedy trial in violation of due process.
court determines that Petitioner's 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.
Respondent should be mindful of and, if necessary,
respond to Petitioner's allegations in his habeas
petition that his appellate counsel's failure to
communicate with him and raise specific errors appearing on
the record “prevented petitioner from exhausting and
raising all issues appearing on the record.”
(Filing No. 1 at CM/ECF p. 17.)
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
January 14, 2019, 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: January 14, 2019: 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 ...