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Koch v. Nebraska Department of Correctional Services

United States District Court, D. Nebraska

December 17, 2019

EDWARD D. KOCH, Petitioner,
v.
NEBRASKA DEPARTMENT OF CORRECTIONAL SERVICES, SCOTT R. FRANCIS, Director; and TAGGERT BOYD, Warden Lincoln Correctional Center; Respondents.

          MEMORANDUM AND ORDER

         This matter is before the court on preliminary review of Petitioner Edward D. Koch'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 are:

Claim One: Petitioner's trial counsel was ineffective for failing to advise Petitioner of the potential consequence (longer sentences) of rejecting the plea agreement offered by the prosecutor.
Claim Two: Petitioner's trial counsel was ineffective for failing to request a competency evaluation and also because counsel failed to advise Petitioner on the defense of insanity.
Claim Three: Petitioner's trial counsel was ineffective for failing to request a continuance of the sentencing date which was held on the anniversary date of the death of the victims.
Claim Four: Petitioner's counsel was ineffective for failing to object to or move to strike the oral and written statements of non-victims that were presented at sentencing in the presentence report or during the sentencing hearing because they impacted or potentially impacted the sentence imposed by the sentencing judge.

         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 January 31, 2020, 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: January 31, 2020: 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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