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Ueding-Nickel v. Frakes

United States District Court, D. Nebraska

February 21, 2019

CARL UEDING-NICKEL, Petitioner,
v.
SCOTT FRAKES, Respondent.

          MEMORANDUM AND ORDER

          Richard G. Kopf Senior United States District Judge

         This matter is before the court on preliminary review of Petitioner Carl Ueding-Nickel'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 trial counsel when trial counsel failed to investigate and present evidence that Petitioner's statement was involuntary on account of severe intoxication.

Claim Two:

Petitioner was denied effective assistance of trial counsel when trial counsel failed to investigate and present evidence that Petitioner's statement was involuntary on account of severe mental illness.

Claim Three:

Petitioner was denied effective assistance of trial counsel when trial counsel failed to investigate and present evidence that Petitioner's statement was involuntary on account of undue coercion by law enforcement.

Claim Four:

Petitioner was denied effective assistance of trial counsel when trial counsel provided deficient performance when litigating a motion to suppress.

Claim Five:

Petitioner was denied effective assistance of trial counsel when trial counsel failed to investigate and present exculpatory evidence.

Claim Six:

Petitioner was denied effective assistance of trial counsel when trial counsel failed to investigate Petitioner's competency or seek a competency hearing.

Claim Seven:

Petitioner was denied effective assistance of appellate counsel when counsel failed to assign as error a Brady violation occurring prior to the suppression hearing.

Claim Eight:

Petitioner was denied effective assistance of appellate counsel when counsel failed to assign as error the failure of the trial court to order a competency hearing.

Claim Nine:

Petitioner was denied effective assistance of appellate counsel when counsel failed to research, brief and argue insufficiency of evidence.

         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 April 8, 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: April 8, 2019: 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 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, Respondent must file and serve a reply brief. In the event that Respondent elects not to file a reply brief, he should inform the court by filing a notice stating that he will not file a reply brief and that the motion is therefore fully submitted for decision.
F. If the motion for summary judgment is denied, Respondent must file an answer, a designation and a brief that complies with terms of this order. (See the following paragraph.) The documents must be filed no later than 30 days after the denial of the motion for summary judgment. Respondent is warned that failure to file an answer, a designation and a brief in a timely ...

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