Williams v. Houston et al

Filing 8

AMENDED MEMORANDUM AND ORDER - Upon initial review of the habeas corpus petition (Filing No. 1 ), the court preliminarily determines that Petitioner's claims, as set forth in this Memorandum and Order, are potentially cognizable in federal cou rt. The Clerk of the court is directed to mail copies of this memorandum and order and the section 2254 petition to Respondent and the Nebraska Attorney General by regular first-class mail. By December 23, 2013, Respondent shall file a motion for sum mary 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: December 23, 2013: deadline for Respondent to file state court records in support of answer 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 21, 2014: check for Respondent to file answer and separate brief. No discovery shal l be undertaken without leave of the court. Ordered by Chief Judge Laurie Smith Camp. (Copies mailed as directed and to pro se party)(AOA)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
LARRY E. WILLIAMS,
Petitioner,
v.
ROBERT HOUSTON, Director, and
FRED BRITTON, Warden,
Respondents.

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CASE NO. 4:13CV3170

AMENDED
MEMORANDUM
AND ORDER

Petitioner has filed a Petition for Writ of Habeas Corpus. (Filing No. 1.) The court
has conducted an initial review of the Petition for Writ of Habeas Corpus to determine
whether the claims made by Petitioner are, when liberally construed, potentially cognizable
in federal court. 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 Sixth Amendment because
Petitioner’s trial counsel did not (1) investigate the case;
(2) gather evidence; (3) prepare for trial; (4) call Kent
Gurll (victim’s step-father) and Don Anderson (victim’s
biological father) to testify as to the victim’s propensity
to “get even”; (5) advise Petitioner during trial; (6)
tender a proper jury instruction; (7) formulate a
reasonable strategy for attacking the motivations of the
alleged victim to make a false claim; (8) call witnesses
who would testify to the victim’s reputation for
untruthfulness; (9) call character witnesses who would
testify to Petitioner’s good character and reputation for
truthfulness; (10) examine the victim’s DHHS records
for evidence of conduct that would establish motivations
for giving false testimony at trial; (11) examine the
victim’s mental health records from Richard Young
Mental Health Hospital that would have disclosed her
bi-polar disorder; (12) examine the victim’s prior criminal
history relevant to impeachment of her trial testimony;
and (13) object to the jury instructions, which did not

include the essential elements of the crimes charged in
Counts VI and VII.
Claim Two:

Petitioner’s conviction was obtained in violation of his
right to due process because the trial court did not
properly instruct the jury as to each of the material
elements of the offenses alleged in Counts VI and VII.

Liberally construed, the court preliminarily decides that Claims One and Two 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 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 set forth in this
Memorandum and Order, are potentially cognizable in federal court;

2.

The Clerk of the court is directed to mail copies of this memorandum and
order and the section 2254 petition to Respondent and the Nebraska
Attorney General by regular first-class mail;

3.

By December 23, 2013, Respondent 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: December 23, 2013: 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
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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.
D.

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.

5.

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.

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;

If Respondent elects to file an answer, the following procedures shall be
followed by Respondent and Petitioner:
A.

By December 23, 2013, Respondent shall file all state court records
that 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,
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e.g., Rules 5(b) and 9 of the the Rules Governing Section 2254 Cases
in the United States District Courts.
C.

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.

6.

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.

The Clerk of the court is directed to set a pro se case management
deadline in this case using the following text: January 21, 2014:
check for Respondent to file answer and separate brief; and

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 12th day of November, 2013.
BY THE COURT:

s/Laurie Smith Camp
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 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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