Killingsworth v. Sabatka-Rine et al
Filing
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MEMORANDUM AND ORDER upon initial review of the Petition for Writ of Habeas Corpus 1 , Respondents shall file a motion for summary judgment or state court records in support of an answer by February 6, 2012. ( Pro Se Case Management Deadline set for 2/6/2012: deadline for Respondents to file state court records in support of answer or motion for summary judgment.) Ordered by Judge Joseph F. Bataillon. (Copy mailed/e-mailed to pro se party)(copies mailed to respondents and Nebraska Attorney General as directed)(ADB)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
DAVID L. KILLINGSWORTH,
Petitioner,
v.
DIANE SABATKA-RINE, Warden,
and ROBERT HOUSTON, Director,
Respondents.
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4:11CV3222
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 made two
claims.
Condensed and summarized for clarity, the claims asserted by Petitioner are:
Claim One:
Petitioner was denied the effective assistance of
counsel in violation of the Fourteenth Amendment
because his trial counsel failed to: (1) raise the issue
that police failed to read Petitioner his Miranda
rights at the time of arrest; (2) challenge the police
interrogation of Petitioner; (3) challenge the order
permitting Petitioner to be forcibly medicated; (4)
conduct an adequate investigation prior to
Petitioner’s preliminary hearing; (5) provide
Petitioner with documents, such as police reports
and medical records, which may have assisted
Petitioner in his own defense; (6) challenge
Petitioner’s transfer to the Lincoln Regional Center
prior to trial; (7) disclose to Petitioner evidence
which may have vindicated him and instead
“conspired” with officials to guarantee his
conviction; (8) properly assert an insanity defense;
(9) cross-examine witnesses or investigate witness
testimony; and (10) pursue a more favorable
sentence and file a direct appeal.
Claim Two:
Petitioner was denied due process of law in violation
of the Sixth and Fourteenth Amendments because
the trial court: (1) permitted Petitioner to be forcibly
medicated prior to, and during, his trial and did not
conduct proper competency proceedings; (2)
sentenced Petitioner based on bias and prejudice; (3)
prevented Petitioner from presenting evidence that
he did not receive a Miranda rights advisement and
that police coerced Petitioner’s confession; and (4)
prevented Petitioner from presenting evidence that
he is actually innocent.
Liberally construed, the court preliminarily decides that both of 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 Petition (filing no. 1), the court preliminarily
determines that Petitioner’s claims, as set forth in this Memorandum and Order, are
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potentially cognizable in federal court.
2.
The Clerk of the court 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 February 6, 2012, Respondents shall 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: February 6, 2012: deadline for Respondents to file state court records in support
of answer or motion for summary judgment.
4.
If Respondents elect to file a motion for summary judgment, the
following procedures shall be followed by Respondents 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 Respondents’ brief shall be
served upon Petitioner except that Respondents are only required
to provide Petitioner with a copy of the specific pages of the
record which are cited in Respondents’ brief. In the event that the
designation of state court records is deemed insufficient by
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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,
Respondents shall file and serve a reply brief. In the event that
Respondents elect not to file a reply brief, they should inform the
court by filing a notice stating that they 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, Respondents 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. Respondents are 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 Respondents elect to file an answer, the following procedures shall be
followed by Respondents and Petitioner:
A.
By February 6, 2012, Respondents shall file all state court
records which are relevant to the cognizable claims. See, e.g.,
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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, Respondents 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 Respondents’ brief
shall be served upon Petitioner at the time they are filed with the
court except that Respondents are only required to provide
Petitioner with a copy of the specific pages of the designated
record which are cited in Respondents’ 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 Respondents’ brief,
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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,
Respondents shall file and serve a reply brief. In the event that
Respondents elect not to file a reply brief, they should inform the
court by filing a notice stating that they 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: March 7, 2012:
check for Respondent to file 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 23rd day of December, 2011.
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
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