Dixon v. Nebraska Correctional for Women

Filing 11

MEMORANDUM AND ORDER: Upon initial review of the amended habeas corpus petition (Filing No. 10), the court preliminarily determines that Petitioner's claims, as set forth in this Memorandum and Order, are potentially cognizable in federal cour t. By June 16, 2014, Respondent shall file a motion for summary judgment or state court records in support of an answer. Petitioner's 3 Motion to Extend is denied. Ordered by Judge Joseph F. Bataillon. (Copy mailed to pro se party and as directed)(ADB, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MICHALE M. DIXON,
Petitioner,
v.
DENISE SKROBECKI, Warden,
Respondent.

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4:13CV3204

MEMORANDUM
AND ORDER

Petitioner has filed an Amended Petition for Writ of Habeas Corpus. (Filing
No. 10.) The court has conducted an initial review of the Amended 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 constitutional right to
retain counsel of her own choosing.

Claim Two:

Petitioner received the ineffective assistance of
counsel in violation of the Sixth and Fourteenth
Amendments because trial counsel did not file an
interlocutory appeal asserting Petitioner’s right to
retain counsel of her choosing, or advise Petitioner
that such an appeal was possible.

Claim Three:

Petitioner’s due process rights were violated when
the state district court proceeded to sentencing
immediately after the plea hearing.

Claim Four:

Petitioner’s due process rights were violated when
the state district court sentenced her as a habitual
criminal.

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 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 amended habeas corpus petition (Filing
No. 10), 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 amended petition to Respondent and the
Nebraska Attorney General by regular first-class mail.
3.
By June 16, 2014, 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: June 16, 2014: 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:

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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.

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
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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 June 16, 2014, 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
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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 Respondent elects not to file a reply brief, he should
inform the court by filing a notice stating that he will not
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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:
July 14, 2014: 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.
7.
Petitioner’s “Motion for Extension” (Filing No. 3) is denied.
Petitioner’s habeas corpus action is not an “appeal” from the decision of the
Nebraska Supreme Court and Petitioner need not file a notice of appeal in
order to proceed in this court.
DATED this 2nd day of May, 2014.
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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