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 John Russell Oldson'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's claims
Claim One: Petitioner's sentence of
“life-to-life” is illegal and void in violation
of the constitutional prohibition against ex post facto laws,
and Petitioner was denied the effective assistance of counsel
because counsel failed to object to the sentence at
sentencing and failed to raise the illegality of the sentence
on direct appeal.
Claim Two: Petitioner was denied due process of law and the
right to a speedy trial because of the approximately 23-year
delay between the time of the alleged crime and the filing of
criminal charges against Petitioner.
Claim Three: Petitioner was denied due process of law and the
constitutional right to a fair trial because there is
insufficient evidence to support his conviction because
Petitioner is actually innocent.
Claim Four: Petitioner was denied effective assistance of
counsel because postconviction counsel failed to advise
Petitioner of the opportunity to appeal the denial of his
motion for postconviction relief.
the exception of Claim Four, the court determines
that Petitioner's 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. Claim Four is
not a cognizable habeas corpus claim because “claims
based on ineffective assistance of counsel and other
constitutional deprivations during state postconviction
proceedings are not cognizable in a federal habeas corpus
action.” Jenkins v. Houston, No. 4:05CV3099,
2006 WL 126632, at *1 (D. Neb. Jan. 17, 2006) (collecting
cases). Claim Four is dismissed. However, Respondent
should be mindful of and, if necessary, respond to
Petitioner's allegations in his habeas petition that the
ineffectiveness of his postconviction counsel prevented
Petitioner from exhausting his claims.
(See, e.g., Filing No. 1 at CM/ECF pp. 5, 7-8, 10.)
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
court with the exception of Claim Four. Claim Four is
December 16, 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 16, 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 ...