Kass v. Houston

Filing 17

MEMORANDUM AND ORDER - The respondent's motion to set aside clerk's entry of default, Filing No. 14 , is granted. The Clerk's Entry of Default (Filing No. 12 ) is vacated. On initial review of the Petition (Filing No. 1 ), the court preliminarily determines that petitioner's claims are potentially cognizable in federal court. The petitioner shall file a reply to the defendant's Answer within 14 days of the date of this order. Respondent shall file all state court records that are relevant to the cognizable claims within 45 days of the date of this order. See, e.g., Rule 5 (c)-(d) of the Rules Governing Section 2254 Cases in the United States District Courts. In the event that the petitioner finds the respondent's designation of state court records is not sufficient, the petitioner may move to designate additional records within 14 days of the respondent's designation. The parties shall contact the chambers of the undersigned wi thin one week of the date of this order to schedule a status conference to discuss further progression of this case to resolution. 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. Ordered by Judge Joseph F. Bataillon. (TEL)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
DAVID M. KASS,
Petitioner,

8:11CV426

vs.
MEMORANDUM AND ORDER
ROBERT P. HOUSTON, Director,
Nebraska Department of Corrections;
Respondent.

This matter is before the court on the respondent’s motion to set aside clerk’s
entry of default, Filing No. 14, and on initial review of a petition for habeas corpus relief
under 28 U.S.C. § 2254. See Filing No. 1, Petition.
The clerk of court entered default on July 26, 2012. Filing No. 12. On August 6,
2012, the defendant filed a motion to set aside the entry of default, as well as an
Answer. Filing No. 13 & Filing No. 14. When a party “has failed to plead or otherwise
defend” against a pleading listed in Rule 7(a), entry of default under Rule 55(a) must
precede grant of a default judgment under Rule 55(b). Johnson v. Dayton Elec. Mfg.
Co., 140 F.3d 781, 783 (8th Cir. 1998). “The court may set aside an entry of default for
good cause.” Fed. R. Civ. P. 55(c); Johnson v. Arden, 614 F.3d 785, 799 (8th Cir.
2010). Although the same factors are typically relevant in deciding whether to set aside
entries of default and default judgments, “[m]ost decisions . . . hold that relief from a
default judgment requires a stronger showing of excuse than relief from a mere default
order.” Johnson v. Dayton Elec. Mfg. Co., 140 F.3d at 783 (quoting Connecticut Nat'l
Mortgage Co. v. Brandstatter, 897 F.2d 883, 885 (7th Cir.1990)).

The defendant has shown by affidavit that, although service had been effected
on the Director of the Department of Corrections, the Nebraska Attorney General was
not notified. Filing No. 15, Index of Evid., Ex. 1, Affidavit of James Smith (“Smith Aff.”);
Filing No. 8, Return of Summons. The defendant also asserts he has a meritorious
defense. Filing No. 15, Index of Evid., Smith Aff. at 2; Filing No. 14, Answer. The court
finds the defendant has shown good cause to excuse the default. In the interests of
justice, the court finds the clerk’s entry of default should be set aside.
Pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United
States District Courts (“§ 2254 Rules”), the court has conducted an initial review of the
Petition to determine whether the claims made by petitioner, when liberally construed,
are potentially cognizable in federal court. See § 2254 Rule 4. In his Petition, Kass
alleges that on January 6, 2010, he was convicted of enticement by electronic
communications device, in violation of Neb. Rev. Stat § 28-833 (2009), after a jury trial
in the District Court of Sarpy County, Nebraska, and was later sentenced to one year of
imprisonment and ordered to register as a sex offender. Filing No. 1, Petition at 1. He
timely appealed and the Nebraska Supreme Court affirmed his conviction on July 15,
2011. Id. at 1; see State v. Kass, 281 Neb. 892, 799 N.W.2d 680 (2011).
Kass acknowledges that he has not filed for any further proceedings in this case
in the United State Supreme Court or the state courts of Nebraska including state
postconviction relief. Filing No. 1, Petition at 2. Kass further stated that he was in
custody at the time the Petition was filed on December 13, 2011. Id. at 1. Kass also
asserts that he challenged the constitutionality of Neb. Rev. Stat. §28-833 at trial and on

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appeal. Id. at 1-2. It appears that Kass raised a First Amendment challenge to the
statute and raised the entrapment issue in his direct appeal. Kass, 799 N.W.2d at 687.
In his habeas corpus petition, Kass asserts three claims:

(1) The statute of

conviction, Neb. Rev. Stat. § 28-833 (2008), is unconstitutional on its face as vague in
violation of Kass’s rights under the First, Fifth, and Fourteenth Amendments to the
United States Constitution; (2) the statute of conviction, Neb. Rev. Stat. § 28-833
(2008), is unconstitutional on its face as overbroad in violation of Kass’s rights under the
First, Fifth, and Fourteenth Amendments to the United States Constitution; and (3) the
state trial court’s failure to instruct the jury on entrapment as an affirmative defense
where there was evidence to support said instruction which was a violation of Kass’s
right to present a defense in his case in contravention of his rights under the Fifth, Sixth
and Fourteenth Amendments to the United States Constitution. Filing No. 1, Petition
at 3.
An application for a writ of habeas corpus filed in federal court by a state prisoner
“shall not be granted unless it appears that the applicant has exhausted the remedies
available in the courts of the State.”

28 U.S.C. § 2254(b)(1)(A).

“To fulfill this

requirement properly, ‘state prisoners must give the state courts one full opportunity to
resolve any constitutional issues by invoking one complete round of the State’s
established appellate review process’ before presenting those issues in an application
for habeas relief in federal court”. Welch v. Lund, 616 f.3d 756, 758 (8th Cir. 2010)
(quoting O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999)).

A state prisoner must

therefore “fairly present” the substance of each federal constitutional claim to the state
courts before seeking federal habeas relief. O’Sullivan, 526 U.S. at 844.
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It does not plainly appear from the petition that the petitioner is not entitled to
relief. Further, it appears that Kass has exhausted his claims. See Kass, 799 N.W.2d
at 697.

Accordingly, the court makes a preliminary finding that Kass’s claims are

potentially cognizable in federal court. In his Answer, the defendant asserts the claims
are procedurally defaulted or lacking in merit. The issues require further development.
Accordingly,
IT IS ORDERED:
1.

The respondent’s motion to set aside clerk’s entry of default, Filing No. 14,

is granted.
2.

The Clerk’s Entry of Default (Filing No. 12) is vacated.

3.

On initial review of the Petition (Filing No. 1), the court preliminarily

determines that petitioner’s claims are potentially cognizable in federal court.
4.

The petitioner shall file a reply to the defendant’s Answer within 14 days of

the date of this order.
5.

Respondent shall file all state court records that are relevant to the

cognizable claims within 45 days of the date of this order. See, e.g., Rule 5(c)-(d) of the
Rules Governing Section 2254 Cases in the United States District Courts.
6.

In the event that the petitioner finds the respondent’s designation of state

court records is not sufficient, the petitioner may move to designate additional records
within 14 days of the respondent’s designation.
7.

The parties shall contact the chambers of the undersigned within one

week of the date of this order to schedule a status conference to discuss further
progression of this case to resolution.
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8.

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 20th day of August, 2012.
BY THE COURT:

s/ Joseph F. Bataillon
United States District Judge

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District of Nebraska does not endorse, recommend, approve, or guarantee any third parties or the
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other site does not affect the opinion of the court.

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