Thomas v. Houston

Filing 28

MEMORANDUM AND ORDER - Upon initial review of the Amended Petition (filing no. 26 ), the court preliminarily determines that Claims One through Five are potentially cognizable in federal court. By October 23, 2012, Respondent shall file a moti on for summary judgment or state court records in support of an answer. No later than 30 days after the filing of the relevant state court records, Respondent shall file an answer. The answer shall be accompanied by a separate brief, submitted at the time of the filing of the answer. Ordered by Judge Joseph F. Bataillon. (Copy mailed to pro se party) (Copies mailed to respondent and Nebraska Attorney General as directed) (TEL)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
L.T. THOMAS,
Petitioner,
v.
ROBERT HOUSTON,
Respondent.

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4:11CV3161

MEMORANDUM
AND ORDER

This matter is before the court on initial review of the Amended Petition for
Writ of Habeas Corpus (“Amended Petition”). (Filing No. 26.) The Amended
Petition was filed in response to the court’s Memorandum and Order appointing James
McGough to represent Petitioner in this matter, and requiring that he file an amended
petition for writ of habeas corpus on Petitioner’s behalf. (See Filing No. 24.)
Condensed and summarized, Petitioner’s amended claims are:
Claim One:

Petitioner was denied due process of law in violation
of the Fourteenth Amendment because the state
failed to correct false statements made by Aybar
Crawford. (Filing No. 26 at CM/ECF p. 11.)

Claim Two:

Petitioner was denied the effective assistance of
counsel in violation of the Sixth and Fourteenth
Amendments because Petitioner’s post-conviction
counsel failed to assign the Crawford issue as error
on appeal. (Id. at CM/ECF p. 15.)

Claim Three:

Petitioner was denied due process of law in violation
of the Fourteenth Amendment because the state

failed to correct false statements made by Roger
Tucker. (Id. at CM/ECF p. 26.)
Claim Four:

Petitioner was denied the effective assistance of
counsel in violation of the Sixth and Fourteenth
Amendments because Petitioner’s post-conviction
counsel failed to assign the Tucker issue as error on
appeal. (Id. at CM/ECF p. 18.)

Claim Five:

Petitioner was denied due process of law in violation
of the Fourteenth Amendment because the trial court
failed to give the jury a manslaughter instruction.
(Id. at CM/ECF p. 19.)

Liberally construed, the court preliminarily decides that Petitioner’s claims are
potentially cognizable in federal court.

However, the court cautions that no

determination has been made regarding the merits of these claims or any defenses
thereto 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 Amended Petition (filing no. 26), the court

preliminarily determines that Claims One through Five are potentially cognizable in
federal court.
2.

The clerk’s office is directed to mail copies of this Memorandum and

Order and the Amended Petition to Respondents and the Nebraska Attorney General
by regular first-class mail.

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3.

By October 23, 2012, Respondent shall file a motion for summary

judgment or state court records in support of an answer. The clerk’s office is directed
to set a pro se case management deadline in this case using the following text: October
23, 2012: deadline for Respondent to file state court records in support of answer or
motion for summary judgment.
4.

If Respondent elects to file a motion for summary judgment, the

following procedures shall be followed by Respondent and Petitioner:
A.

The motion for summary judgment shall be accompanied by a
separate brief, submitted at the time of the filing of the motion.

B.

The motion for summary judgment shall be supported by such
state court records as are necessary to support the motion. Those
records shall 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 shall be
served upon Petitioner except that Respondent is only required to
provide Petitioner with a copy of the specific pages of the record
which are cited in Respondent’s brief. In the event that the
designation of state court records is deemed insufficient by
Petitioner, Petitioner may file a motion with the court requesting
additional documents. Such motion shall set forth the documents
requested and the reasons the documents are relevant to the
cognizable claims.

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D.

No later than 30 days following the filing of the motion for
summary judgment, Petitioner shall file and serve a brief in
opposition to the motion for summary judgment. Petitioner shall
submit no other documents unless directed to do so by the court.

E.

No later than 30 days after the filing of Petitioner’s brief,
Respondent shall file and serve a reply brief. In the event that
Respondent elects not to file a reply brief, he should inform the
court by filing a notice stating that he will not file a reply brief and
that the motion is therefore fully submitted for decision.

F.

If the motion for summary judgment is denied, Respondent shall
file an answer, a designation and a brief that complies with terms
of this order. (See the following paragraph.) The documents shall
be filed no later than 30 days after the denial of the motion for
summary judgment. Respondent is warned that the failure to
file an answer, a designation and a brief in a timely fashion
may result in the imposition of sanctions, including the release
of Petitioner.

5.

If Respondent elects to file an answer, the following procedures shall be

followed by Respondent and Petitioner:
A.

By October 23, 2012, Respondent shall file all state court records
which are relevant to the cognizable claims. See, e.g., Rule 5(c)(d) of the Rules Governing Section 2254 Cases in the United
States District Courts. Those records shall be contained in a
separate filing entitled: “Designation of State Court Records In
Support of Answer.”

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B.

No later than 30 days after the filing of the relevant state court
records, Respondent shall file an answer. The answer shall be
accompanied by a separate brief, submitted at the time of the
filing of the answer. Both the answer and brief shall address all
matters germane to the case including, but not limited to, the
merits of Petitioner’s allegations that have survived initial review,
and whether any claim is barred by a failure to exhaust state
remedies, a procedural bar, non-retroactivity, a statute of
limitations, or because the petition is an unauthorized second or
successive petition. See, e.g., Rules 5(b) and 9 of the Rules
Governing Section 2254 Cases in the United States District
Courts.

C.

Copies of the answer, the designation, and Respondent’s brief
shall be served upon Petitioner at the time they are filed with the
court except that Respondent is only required to provide Petitioner
with a copy of the specific pages of the designated record which
are cited in Respondent’s brief. In the event that the designation
of state court records is deemed insufficient by Petitioner,
Petitioner may file a motion with the court requesting additional
documents. Such motion shall 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 Respondent’s brief,
Petitioner shall file and serve a brief in response. Petitioner shall
submit no other documents unless directed to do so by the court.

E.

No later than 30 days after the filing of Petitioner’s brief,
Respondent shall file and serve a reply brief. In the event that
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Respondent elects not to file a reply brief, he should inform the
court by filing a notice stating that he will not file a reply brief and
that the merits of the petition are therefore fully submitted for
decision.
F.

The Clerk of the court is directed to set a pro se case management
deadline in this case using the following text: November 23,
2012: check for Respondent’s answer and separate brief.

6.

No discovery shall be undertaken without leave of the court. See Rule

6 of the Rules Governing Section 2254 Cases in the United States District Courts.
DATED this 7th day of September, 2012.
BY THE COURT:
s/ Joseph F. Bataillon
United States District Judge

*This opinion may contain hyperlinks to other documents or Web sites. The
U.S. District Court for the District of Nebraska does not endorse, recommend,
approve, or guarantee any third parties or the services or products they provide on
their Web sites. Likewise, the court has no agreements with any of these third parties
or their Web sites. The court accepts no responsibility for the availability or
functionality of any hyperlink. Thus, the fact that a hyperlink ceases to work or
directs the user to some other site does not affect the opinion of the court.
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