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Weathers v. Frakes

United States District Court, D. Nebraska

September 4, 2019

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 ...


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