Segura v. Houston

Filing 6

MEMORANDUM AND ORDER - Upon initial review of the Petition (Filing No. 1 ), the Court preliminarily determines that Claims One, Two, and Three, as set forth in this Memorandum and Order, are potentially cognizable in federal court. By May 10, 2012, respondent shall file a motion for summary judgment or state court records in support of an answer. No discovery shall be undertaken without leave of the Court. (Pro Se Case Management Deadline set for 5/10/2012.) Ordered by Senior Judge Lyle E. Strom. (Copy mailed to pro se party) (TEL)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
EDDY SEGURA,

)
)
Petitioner,
)
)
v.
)
)
ROBERT HOUSTON,
)
)
Respondent.
)
______________________________)

8:12CV60

MEMORANDUM AND ORDER

The Court has conducted an initial review of the
Petition for Writ of Habeas Corpus (Filing No. 1) to determine
whether petitioner’s claims are, when liberally construed,
potentially cognizable in federal court.

Petitioner has raised

three claims.
Claim One: Petitioner was
convicted in violation of his right
to due process of law because the
trial court (1) did not order that
petitioner undergo a full
psychiatric evaluation; (2) did not
recuse himself despite “multiple
conflicts of interest”; and (3)
coerced petitioner into accepting a
plea agreement. (Set forth in the
Petition as Grounds One, Three, and
Five.)
Claim Two: Petitioner received the
ineffective assistance of counsel
in violation of the Sixth Amendment
because his trial counsel (1)
failed to “present to the court a
written sanity evaluation”; (2)
failed to inform petitioner of his
right to challenge the psychiatric
report; (3) coerced petitioner into
accepting a plea agreement; and (4)
directed petitioner to enter into a

plea agreement before the defense
had gained access to all discovery
materials. (Set forth in the
Petition as Grounds Two, Three,
Four, and Six.)
Claim Three: Petitioner was
convicted in violation of his right
to due process of law because the
prosecution committed misconduct
when it allowed petitioner to enter
into a plea agreement before
providing petitioner access to
discovery materials. (Set forth in
the Petition as Ground Six.)
Liberally construed, the Court preliminarily decides
that petitioner’s three 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 ORDERED:
1.

Upon initial review of the Petition (Filing No.

1), the Court preliminarily determines that Claims One, Two, and
Three, as set forth in this Memorandum and Order, are potentially
cognizable in federal court.
2.

The clerk’s office 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.
3.

By May 10, 2012, respondent shall file a motion

for summary judgment or state court records in support of an

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answer.

The clerk’s office is directed to set a pro se case

management deadline in this case using the following text:

May

10, 2012: 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.

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.

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E.

F.

5.

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.
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 May 10, 2012, 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.”

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
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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 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: June 11, 2012:
check for respondent to file answer and
separate brief.

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6.
the Court.

No discovery shall be undertaken without leave of
See Rule 6 of the Rules Governing Section 2254 Cases

in the United States District Courts.
DATED this 27th day of March, 2012.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

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