Miksch v. Hansen

Filing 6

ORDER - Upon initial review of the habeas corpus petition (Filing No. 1 ), the court preliminarily determines that Petitioner's claims, as they are set forth in this Memorandum and Order, are potentially cognizable in federal court. By March 12 , 2018, Respondent must 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: March 12, 2018: 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: April 9, 2018: check for Respondent's answer and separate brief. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (KLF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
PATRICK M. MIKSCH,
Petitioner,
v.
BRAD HANSEN, Warden,
Respondent.

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4:18CV3008

ORDER

This matter is before the court on preliminary review of Petitioner Miksch’s
Petition for Writ of Habeas Corpus (Filing No. 1) brought pursuant to 28 U.S.C.
§ 2254. The purpose of this review is to determine whether Petitioner’s claims, when
liberally construed, are potentially cognizable in federal court. Condensed and
summarized for clarity, Petitioner’s claims are:
CLAIM ONE: Petitioner’s plea of no contest was constitutionally invalid
because: (1) Petitioner was suffering from a mental illness and possessed
a low IQ at the time he entered his no contest plea; (2) Petitioner was
coerced by his trial counsel and family members into entering a plea of
no contest.
CLAIM TWO: Petitioner’s trial counsel rendered constitutionally
ineffective assistance of counsel because: (1) counsel failed to consult
with Petitioner or investigate the case, particularly Petitioner’s mental
health, prior to advising Petitioner to enter a plea of no contest; (2)
counsel failed to make a record that the trial court indicated that
Petitioner was displaying symptoms of mental illness and failed to
request withdrawal of the no contest plea upon hearing the remarks of
the judge; (3) counsel failed to discuss with Petitioner and bring to the

attention of the trial court a report from Dr. John Curran and related
information regarding Petitioner’s mental health and IQ; and (4) counsel
and family members coerced the Petitioner into entering a no contest
plea.
CLAIM THREE: Petitioner’s separate appellate counsel on direct appeal
rendered constitutionally ineffective assistance of counsel because: (1)
counsel failed to consult with Petitioner regarding the appeal; and (2)
counsel failed to present on appeal CLAIM ONE and CLAIM TWO
above during the direct appeal.1
The court determines that these claims, when liberally construed, are potentially
cognizable in federal court. However, the court cautions Petitioner 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 they are set forth in this
Memorandum and Order, are potentially cognizable in federal court.
2.
By March 12, 2018, Respondent must file a motion for summary
judgment or state court records in support of an answer. The clerk of the court is
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As noted, I have summarized and condensed the claims. I note that the petition
is repetitive. Moreover, some of the specific allegations (for example, the fact that trial
counsel “allowed” Petitioner to seek a “second opinion” from a lawyer who did not
enter an appearance) fail to state a federal constitutional claim. Therefore, Petitioner
will be limited to the claims articulated above despite Petitioner’s attempt to “reserve
the right” to supplement his claims.
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directed to set a pro se case management deadline in this case using the following text:
March 12, 2018: deadline for Respondent to file state court records in support of
answer or motion for summary judgment.
3.
If Respondent elects to file a motion for summary judgment, the
following procedures must be followed by Respondent and Petitioner:
A.

The motion for summary judgment must be accompanied by a
separate brief, submitted at the time the motion is filed.

B.

The motion for summary judgment must be supported by any state
court records that are necessary to support the motion. Those
records must 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 must be
served on Petitioner except that Respondent is only required to
provide Petitioner with a copy of the specific pages of the record
that are cited in Respondent’s motion and brief. In the event that
the designation of state court records is deemed insufficient by
Petitioner or Petitioner needs additional records from the
designation, Petitioner may file a motion with the court requesting
additional documents. Such motion must 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 must file and serve a brief in

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opposition to the motion for summary judgment. Petitioner may
not submit other documents unless directed to do so by the court.
E.

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

4.
If Respondent elects to file an answer, the following procedures must be
followed by Respondent and Petitioner:
A.

By March 12, 2018, Respondent must 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 must be contained in a separate
filing entitled: “Designation of State Court Records in Support of
Answer.”

B.

No later than 30 days after the relevant state court records are
filed, Respondent must file an answer. The answer must be
accompanied by a separate brief, submitted at the time the answer
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is filed. Both the answer and the brief must 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
must be served on 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 that are
cited in Respondent’s answer and brief. In the event that the
designation of state court records is deemed insufficient by
Petitioner or Petitioner needs additional records from the
designation, Petitioner may file a motion with the court requesting
additional documents. Such motion must set forth the documents
requested and the reasons the documents are relevant to the
cognizable claims.

D.

No later than 30 days after Respondent’s brief is filed, Petitioner
must file and serve a brief in response. Petitioner must not submit
any other documents unless directed to do so by the court.

E.

No later than 30 days after Petitioner’s brief is filed, Respondent
must 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.

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F.

The clerk of the court is directed to set a pro se case management
deadline in this case using the following text: April 9, 2018: check
for Respondent’s answer and separate brief.

5.
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 24th day of January, 2018.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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