United States District Court, D. Nebraska
BRANDON J. WEATHERS, 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's Amended Petition for Writ of Habeas
Corpus (Filing No. 9-1) 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.
Petitioner
advises that he wishes to add one claim, that is a claim of
actual innocence. While the Supreme Court has not determined
that a claim of actual innocence is cognizable as a
stand-alone claim, I shall progress it out of an abundance of
caution. Condensed, summarized and restated for clarity,
Petitioner's claims are these:
Claim One: Appellate counsel was ineffective for failing to
assign as error the trial court's failure to conduct an
adequate inquiry into Petitioner's motion to substitute
counsel.
Claim Two: Appellate counsel was ineffective for failing to
assign as error that the Petitioner's waiver of counsel
was not knowingly, voluntarily and intelligently made.
Claim Three: Appellate counsel was ineffective for failing to
assign as error that Petitioner was denied his right to
effective assistance of trial counsel due to ineffective
cross-examination.
Claim Four: Appellate counsel was ineffective for failing to
assign as error that the prosecution withheld exculpatory
evidence in violation of Brady v. Maryland.
Claim Five: Appellate counsel was ineffective for failing to
assign as error that trial counsel was ineffective for
failing to suppress the DNA evidence.
Claim Six: Petitioner is actually innocent.
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 or any defenses 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 amended habeas corpus petition (Filing
No. 9-1), which supersedes the earlier petition, the
court determines that the foregoing claims are potentially
cognizable.
2. By
October 21, 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: October 21, 2019: deadline for
Respondent to file state court records in support of answer
or motion for summary judgment.[1]
3. If
Respondent elects to file a motion for summary judgment, the
following procedures must be ...