United States District Court, D. Nebraska
DARNELL L. RUSSELL, Petitioner,
SCOTT FRAKES, Director of Nebraska Department of Correctional Services; and MICHELLE CAPPS, Warden of Nebraska State Penitentiary, Lincoln, Nebraska; Respondents.
MEMORANDUM AND ORDER
Richard G. Kopf, Senior United States District Judge.
matter is before the court on preliminary review of
Petitioner Darnell L. Russell'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 raises the
following claim in his habeas corpus petition:
Petitioner was denied effective assistance of counsel in
violation of the Sixth and Fourteenth Amendments because
counsel failed to properly investigate, research, prepare,
and file a motion to suppress on the issue of the wiretaps of
phone conversations and text messages obtained in violation
of Neb. Rev. Stat. §§ 86-271 to 86-296 and the
Fourth and Fourteenth Amendments and failed to preserve the
issue for appeal.
(See Filing No. 1 at CM/ECF p. 16.)
court determines that this claim, when liberally construed,
is potentially cognizable in federal court. However, the
court cautions Petitioner that no determination has been made
regarding the merits of this claim or any defenses to it or
whether there are procedural bars that will prevent
Petitioner from obtaining the relief sought.
has also filed a Motion for Discovery generally seeking all
documents and evidence related to his state criminal
proceedings. (Filing No. 3.) “A habeas
petitioner, unlike the usual civil litigant in federal court,
is not entitled to discovery as a matter of course.”
Williams v. Steele, 2013 WL 5838727, at *2 (E.D. Mo.
Oct. 30, 2013) (citing Bracy v. Gramley, 520 U.S.
899, 904 (1997)). Rule 6 of the Rules Governing Section
2254 Cases in the United States District Courts provides
that “[a] judge may, for good cause, authorize a party
to conduct discovery under the Federal Rules of Civil
Procedure and may limit the extent of discovery.” As
set forth below, this progression order requires Respondents
to file any necessary state court records in support of a
motion for summary judgment or, if Respondents elect to file
an answer, all state court records relevant to
Petitioner's claim. A procedure is also set forth below
explaining how Petitioner may seek additional records if he
deems the designation of state court records insufficient or
needs additional records from the designation. Accordingly,
the court will deny Petitioner's request to conduct
discovery at this time as premature.
THEREFORE ORDERED that:
initial review of the habeas corpus petition (filing no.
1), the court preliminarily determines that
Petitioner's claim, as set forth in this Memorandum and
Order, is potentially cognizable in federal court.
December 12, 2019, Respondents 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: December 12, 2019: deadline for
Respondents to file state court records in support of answer
or motion for summary judgment.
Respondents elect to file a motion for summary judgment, the
following procedures must be followed by Respondents 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
Respondents' brief must be served on Petitioner
except that Respondents are only required to provide
Petitioner with a copy of the specific pages of the record
that are cited in Respondents' 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 ...