Thomas v. Houston
Filing
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MEMORANDUM AND ORDER - Upon initial review of the Petition (filing no. 1 ), the court preliminarily determines that Claims One through Seven, as set forth in this Memorandum and Order, are potentially cognizable in federal court. Clerk to mail copie s. By December 16, 2011, Respondent shall file a motion for summary judgment or state court records in support of an answer. ***Pro Se Case Management Deadline set for 12/16/2011: deadline for Respondent to file state court records in support of answ er or motion for summary judgment. The Clerk of the court is directed to set a pro se case management deadline in this case using the following text: January 16, 2012: check for Respondent's answer and separate brief. Ordered by Chief Judge Joseph F. Bataillon. (Copies mailed to pro se party and as directed)(JAB)
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
The court has conducted an initial review of the Petition for Writ of Habeas
Corpus (filing no. 1) to determine whether the claims made by Petitioner are, when
liberally construed, potentially cognizable in federal court. Petitioner has raised
seven claims. Condensed and summarized for clarity, Petitioner’s claims are set forth
below.
Claim One:
The State violated the United States Supreme
Court’s holding in Batson v. Kentucky, 476 U.S. 79
(1986), when it struck Lenore Navarro from the jury.
(Filing No. 1 at CM/ECF p. 7.)
Claim Two:
Petitioner was denied the effective assistance of
counsel in violation of the Sixth and Fourteenth
Amendments because appellate counsel did not
argue that trial counsel failed to (1) raise a
Batson challenge (id. at CM/ECF p. 14); (2) present
evidence of juror dishonesty (id. at CM/ECF p. 33);
(3) preserve evidence of the jury’s communication
with the trial judge (id. at CM/ECF p. 44); (4) call
Vincent Evans as a defense witness (id. at CM/ECF
p. 82); (5) ask witness William King to identify the
person with him in his vehicle on the night of the
shooting (id. at CM/ECF p. 80); (6) object to Officer
Carlson’s testimony about the speed the victim was
traveling (id. at CM/ECF p. 100); (7) request a jury
instruction that defined “supervening” or “efficient
intervening” cause (id. at CM/ECF p. 115); and (8)
request a manslaughter jury instruction (id. at
CM/ECF p. 136).
Claim Three:
Petitioner was denied the effective assistance of
counsel in violation of the Sixth and Fourteenth
Amendments because appellate counsel failed to (1)
argue that “there was racial discrimination in the
jury selection process” (id. at CM/ECF p. 22); (2)
argue that one of the jurors had committed
misconduct (id. at CM/ECF p. 40); (3) present
evidence of Aybard Crawford’s false testimony (id.
at CM/ECF p. 64); (4) argue that the State violated
the court’s discovery order (id. at CM/ECF p. 100);
(5) argue that a proximate cause jury instruction
should have been given (id. at CM/ECF p. 105); (6)
argue that a manslaughter jury instruction should
have been given (id. at CM/ECF p. 126); and (7)
argue that Nebraska Revised Statute § 28-304 is
unconstitutional (id. at CM/ECF p. 146).
Claim Four:
Petitioner was denied his right to a fair trial in front
of an impartial jury when “Juror X” withheld
information during voir dire that would have
resulted in that juror being struck for cause from the
jury. (Id. at CM/ECF p. 26.)
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Claim Five:
Petitioner was denied due process of law in violation
of the Fourteenth Amendment because the
prosecution knowingly allowed State’s witnesses
Aybar Crawford and Roger Tucker to present false
testimony. (Id. at CM/ECF pp. 54 and 69.)
Claim Six:
Petitioner was denied due process of law in violation
of the Fourteenth Amendment because Crime Scene
Investigator David Kofoed tampered with and
destroyed evidence material to Petitioner’s selfdefense claim. (Id. at CM/ECF p. 162.)
Claim Seven:
Petitioner was denied the effective assistance of
counsel in violation of the Sixth and Fourteenth
Amendments because trial counsel failed to (1)
investigate Roger Tucker’s criminal history (id. at
CM/ECF p. 75); (2) object to the State’s discovery
violation (id. at CM/ECF p. 90); (3) depose Officer
Carlson before trial (id. at CM/ECF p. 90); (4) object
to Officer Carlson’s testimony about the speed the
victim was traveling (id. at CM/ECF p. 90); and (5)
argue that Nebraska Revised Statute § 28-304 is
unconstitutional (id. at CM/ECF p. 146).
Liberally construed, the court preliminarily decides that Petitioner’s seven
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.
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IT IS THEREFORE ORDERED that:
1.
Upon initial review of the Petition (filing no. 1), the court preliminarily
determines that Claims One through Seven, as set forth in this Memorandum and
Order, are potentially cognizable in federal court.
2.
The clerk’s office is directed to mail copies of this Memorandum and
Order and the Petition to Respondents and the Nebraska Attorney General by regular
first-class mail.
3.
By December 16, 2011, 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:
December 16, 2011: 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
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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.
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:
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A.
By December 16, 2011, 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.”
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.
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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
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: January 16, 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 2nd day of November, 2011.
BY THE COURT:
s/ Joseph F. Bataillon
Chief 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
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directs the user to some other site does not affect the opinion of the court.
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