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 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 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.)
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
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.
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 ...