United States District Court, D. Nebraska
MEMORANDUM AND ORDER
RICHARD G. KOPF SENIOR UNITED STATES DISTRICT JUDGE
matter is before the court on preliminary review of
Petitioner Reginald Smith'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
counsel because trial counsel (1)
presented no evidence, (2) did not call
important witnesses who were at the scene to testify about
what they observed, and (3) did not allow
Petitioner to testify as to the issue of self defense.
Claim Two: Petitioner was denied his constitutional right to
a fair trial because the trial court erred by not granting
Petitioner's motions for mistrial and by not granting a
mistrial after the second time the jury informed the trial
court it could not reach a verdict.
Claim Three: The trial court erred in allowing into evidence
Exhibits 4, 5, 6, and 7 to enhance Petitioner's sentence.
Claim Four: There was insufficient evidence as a matter of
law to sustain Petitioner's conviction.
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.
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
September 3, 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: September 3, 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 ...