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Fuentes v. Hansen

United States District Court, D. Nebraska

October 29, 2019

TIMOTHY FUENTES, Petitioner,
v.
BRAD HANSEN, Respondent.

          MEMORANDUM AND ORDER

          Richard G. Kopf Senior United States District Judge

         This matter is before the court on preliminary review of Petitioner Timothy Fuentes' 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[1] are:

Claim One: Petitioner was denied the effective assistance of counsel because counsel (1) failed to file pretrial motions; (2) failed to properly conduct jury selection; (3) failed to properly represent Petitioner at trial; (4) failed to properly argue for a new trial; and (5) failed to file a motion for recusal of the trial judge. (Filing No. 1 at CM/ECF pp. 5-6, 12.)
Claim Two: Petitioner was denied the constitutional right to a fair trial because there was insufficient evidence to support his conviction. (Id. at CM/ECF pp. 6-7.)
Claim Three: Petitioner was denied the right to prepare a meaningful defense, due process of law, and the effective assistance of counsel because counsel (1) failed to investigate, depose, and call witnesses who would have provided first-hand knowledge of what happened (id. at CM/ECF pp. 7-8); (2) failed to investigate other suspects (id. at CM/ECF p. 12); (3) failed to conduct reasonable pretrial discovery and investigation to gather defense evidence to refute the State's theory of sexual assault on a child in the third degree (id. at CM/ECF pp. 5-6, 8); and (4) failed to impeach the victim's testimony and offer evidence to refute the photographic lineup in which the victim's mother pressured the victim to identify Petitioner (id. at CM/ECF pp. 8, 12).
Claim Four: Petitioner was denied due process and the effective assistance of counsel because counsel failed to raise several claims on appeal including improper inconsistencies in the victim's statement and lack of evidence when the trial court called a mistrial. (Id. at CM/ECF p. 9.)

         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.

         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 December 13, 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: December 13, 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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