United States District Court, D. Nebraska
EDWARD D. KOCH, Petitioner,
NEBRASKA DEPARTMENT OF CORRECTIONAL SERVICES, SCOTT R. FRANCIS, Director; and TAGGERT BOYD, Warden Lincoln Correctional Center; Respondents.
MEMORANDUM AND ORDER
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
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
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
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.
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 court.
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.
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 ...