United States District Court, D. Nebraska
KEINALD V. PARNELL, Petitioner,
SCOTT R. FRAKES, Respondent.
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge
matter is before the court on preliminary review of
Petitioner Keinald V. Parnell'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's convictions for false
imprisonment and terroristic threats are unconstitutional
because there is insufficient evidence to support the
Claim Two: Petitioner was denied effective assistance of
counsel because trial counsel (1)
waived Petitioner's right to be present at arraignment
without consulting Petitioner; (2) failed to
file a motion to quash or dismiss the charges against
Petitioner because Petitioner was charged and held for eight
months under an incorrect name; (3) failed
to assert Petitioner's speedy trial rights;
(4) failed to file any motion regarding the
trial court judge holding a second preliminary hearing;
(5) failed to challenge the admission of the
“altered” knife evidence; (6)
failed to move to suppress the gun found eleven days after
Petitioner was in jail; (7) failed to
investigate and subpoena phone records and text messages to
prove collusion between the victim and his mother; and
(8) failed to call Officer Passo and Officer
Joe Choquette to testify at trial.
Claim Three: Petitioner was denied effective assistance of
counsel because appellate counsel
(1) failed to consult or communicate with
Petitioner regarding his appeal and failed to raise
on appeal (2) “the confrontation
clause pertaining to . . . OFFICER ANDREW PASSO”
(filing no. 1 at CM/ECF pp. 14-15); (3)
judicial misconduct because the trial court judge held a
second preliminary hearing to add three weapons charges;
(4) prosecutorial misconduct because the
State allowed evidence planted by the victim, failed to call
key witnesses, and used perjured testimony;
(5) the fact that Petitioner was
incarcerated for eight months prior to trial under his
son's name; (6) that Officer Choquette
was never called to testify; (7) error in
admission of the gun evidence because Petitioner did not live
or ever reside where the weapon was found; and
(8) error in jury instructions No. 4 and No.
7 (see id. at CM/ECF pp. 18, 54-55).
Claim Four: Petitioner's convictions were obtained
through prosecutorial misconduct because the State
(1) failed to call Officer Andrew Passo who
was the first responding officer; (2)
allowed planted evidence to be presented against Petitioner;
(3) failed to do anything to rectify the
victim's perjured testimony; and (4)
failed to call Officer Choquette regarding D.N. A. evidence.
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.
Respondent should be mindful of and, if necessary,
respond to Petitioner's assertions of “actual
innocence” based on insufficient evidence to the extent
Petitioner relies on such allegations to excuse any
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.
July 18, 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: July 18, 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 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 ...