Williams v. Britten

Filing 3

MEMORANDUM AND ORDER - Upon initial review of the Petition (Filing No. 1 ), the court preliminarily determines that the following claims are potentially cognizable in federal court: Claims One, Two, Four, and Five. The court preliminarily determi nes that Claim Three is not cognizable in a federal court habeas action and is therefore dismissed. 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 July 9, 2012, 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 foll owing text: July 9, 2012: 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: August 8, 2012: check for Respondent to file answer and separate brief. No discovery shall be undertaken without leave of the court. Ordered by Chief Judge Laurie Smith Camp. (Copy mailed to pro se party and as directed)(GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
DECABOOTER WILLIAMS,
Petitioner,
v.
FRED BRITTEN,
Respondent.

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CASE NO. 8:12CV163

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

Petitioner was denied the effective assistance of
counsel in violation of the Sixth Amendment because
Petitioner’s trial counsel: (a) failed to take the deposition
of the “only direct witness”; (b) failed to make an offer of
proof and failed to properly preserve the record during
the examination of the “only direct witness” regarding
her prior inconsistent statements; (c) did not object to
improper jury instructions regarding a crime with which
Petitioner was not charged; (d) failed to investigate and
present a drug psychosis/insanity defense; and (e) did
not object when video tape of Petitioner’s redacted
confession was played during trial.

Claim Two:

Petitioner was denied the effective assistance of
counsel in violation of the Sixth Amendment because
Petitioner’s appellate counsel: (a) failed to raise on
direct appeal the issues set forth in Claims One, Four,
and Five; and (b) failed to withdraw from the case and
request the appointment of new counsel.

Claim Three:

Petitioner was denied the effective assistance of
counsel in violation of the Sixth Amendment because
Petitioner’s post-conviction counsel failed to timely file
a brief after filing an appeal from the denial of postconviction relief.

Claim Four:

Petitioner was denied the due process of law in violation
of the Fourteenth Amendment because the trial court
(1) gave an improper jury instruction regarding a crime
with which Petitioner was not charged; (2) incorrectly
determined that police gave Petitioner adequate
Miranda warnings before interviewing him; and (3)
incorrectly determined that Petitioner’s confession was
voluntary.

Claim Five:

Petitioner was denied the due process of law in violation
of the Fourteenth Amendment because the Nebraska
Supreme Court (1) denied his request for a new trial;
(2)incorrectly determined that police gave Petitioner
adequate Miranda warnings before interviewing him;
and (3) incorrectly determined that Petitioner’s
confession was voluntary.

Liberally construed, the court preliminarily decides that Claims One, Two, Four, and
Five 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.
Liberally construed, the court decides that Claim Three is not cognizable in a federal
court habeas action, as it involves questions of state law that have been decided by a state
court. Lupien v. Clarke, 403 F.3d 615, 619 (8th Cir. 2005). Indeed, errors in state post
conviction proceedings are not cognizable in a federal habeas corpus action. Bell-Bey v.
Roper, 499 F.3d 752, 756 (8th Cir. 2007), (“Any error in [the petitioner’s] state
post-conviction proceeding is not a constitutional error that could justify granting an
application for a writ of habeas corpus.”).

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IT IS THEREFORE ORDERED that:
1.

Upon initial review of the Petition (Filing No. 1), the court preliminarily
determines that the following claims are potentially cognizable in federal
court: Claims One, Two, Four, and Five;

2.

The court preliminarily determines that Claim Three is not cognizable in a
federal court habeas action and is therefore dismissed;

3.

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;

4.

By July 9, 2012, 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: July 9, 2012: deadline for Respondent to file state court
records in support of answer or motion for summary judgment;

5.

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.

6.

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 July 9, 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 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.
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D.

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.

7.

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.

The Clerk of the court is directed to set a pro se case management
deadline in this case using the following text: August 8, 2012: check
for Respondent to file answer and separate brief; and

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 25th day of May, 2012.
BY THE COURT:

s/Laurie Smith Camp
Chief 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
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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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