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Parnell v. Frakes

United States District Court, D. Nebraska

June 3, 2019

KEINALD V. PARNELL, Petitioner,
v.
SCOTT R. FRAKES, Respondent.

          MEMORANDUM AND ORDER

          Richard G. Kopf Senior United States District Judge

         This 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 convictions.
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.

         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. 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 procedural bar.[1]

         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 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.

         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 ...

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