Morgan v. Houston

Filing 7

MEMORANDUM AND ORDER regarding Petition for Writ of Habeas Corpus 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 potentially cognizable in federal court. 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. By August 17, 2011, 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: August 17, 2011: deadline for Respondent to file state cour t records in support of answer or motion for summary judgment. No discovery shall be undertaken without leave of the court. ***Pro Se Case Management Deadlines: (Pro Se Case Management Deadline set for 8/17/2011: Deadline for Respondent to file sta te court records in support of answer or motion for summary judgment) Ordered by Judge Richard G. Kopf. (Copy mailed to pro se party) (Copies of Memorandum and Order and Petition mailed to Respondents and Nebraska Attorney General as directed) (TEL)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JOHNNY FRED MORGAN JR.,
Petitioner,
v.
ROBERT HOUSTON,
Respondent.

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8:11CV232

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 three
claims.
Condensed and summarized for clarity, the claims asserted by Petitioner are:
Claim One:

Petitioner was denied his right to confront witnesses
in violation of the Sixth Amendment because the
victim was allowed to testify from behind a “large
stuffed animal.”

Claim Two:

Petitioner was denied due process of law in violation
of the Fourteenth Amendment because (1) the State
had no physical or medical evidence to support the
victim’s testimony; (2) the State’s witnesses all gave
conflicting testimony; (3) the victim was impeached
with evidence that she was lying; (4) the victim’s
sister was allowed to sit in the courtroom in
violation of the sequestration order and could not be
called as a witness; (5) the victim was allowed to

testify after the State admitted she was lying; (6) the
trial court did not hold an evidentiary hearing after
it was informed the victim was lying; (7) the trial
court permitted the victim to testify from behind a
“large stuffed animal.”
Claim Three:

Petitioner was denied the effective assistance of
counsel in violation of the Sixth Amendment
because his trial counsel did not (1) ask for an
evidentiary hearing; (2) call witnesses proffered by
Petitioner; (3) object to the victim testifying from
behind a “large stuffed animal”; (4) ask for a mistrial
after it was apparent that the victim was lying.

Liberally construed, the court preliminarily decides that all three 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
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.

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3.
By August 17, 2011, 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: August 17, 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
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.

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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:
A.

By August 17, 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.”

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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.

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
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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: September 17,
2011: 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 5th day of July, 2011.
BY THE COURT:
Richard G. Kopf
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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