Thompson v. Nebraska Department of Corrections et al
Filing
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MEMORANDUM AND ORDER - 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 July 26, 2012, Respondents shall file a motion for summary judgment or state court reco rds 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 26, 2012: deadline for Respondents to file state court records in support of answer or motion for summary judgment. If Respondents elect to file an answer, the procedures as set out in this Memorandum and shall be followed by Respondents and Petitioner. The Clerk of the court is directed to set a pro se case management deadline in this case usi ng the following text: August 27, 2012 check for Respondents 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 respondents as directed)(GJG)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
LARRY A. THOMPSON,
Petitioner,
v.
NEBRASKA DEPARTMENT OF
CORRECTIONS, ROBERT P.
HOUSTON, Director Department of
Corrections, and FRED BRITTEN,
Warden Tecumseh State Corr. Inst.,
Respondents.
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CASE NO. 8:12CV191
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 four claims.
Condensed and summarized for clarity, the claims asserted by Petitioner are:
Claim One:
Petitioner was denied due process of law and equal
protection under the Fifth, Sixth, and Fourteenth
Amendments because Petitioner did not make his no
contest plea “knowingly, willingly, intelligently, and
understandingly.”
Claim Two:
Petitioner was denied effective assistance of trial
counsel in violation of the Sixth Amendment because
trial counsel (a) failed to object and advise Petitioner of
his rights under the “Amended Information” and the
“original Information”; (b) failed to file appropriate
pretrial or other defense motions; (c) failed to advise
Petitioner that he could file a motion to withdraw the
plea for cause; (d) failed to preserve the issue of
withdrawal of the plea for appeal; (e) failed to advise the
Court of the plea promise or make it part of the record;
(f) failed to provide Petitioner with knowledge of the true
charge and the charges in the “original Information” and
“Amended Information”; (g) failed to object to the court
misreading the charge; (h) failed to properly investigate
and advise Petitioner regarding entering his no contest
plea.
Claim Three:
Petitioner was denied effective assistance of appellate
counsel in violation of the Sixth Amendment because
appellate counsel (a) failed to brief and raise the issue
of Petitioner’s invalid guilty plea; (b) failed to brief and
raise issues of ineffective assistance of counsel; (c)
failed to brief and raise issues of judicial misconduct; (d)
failed to question the court’s jurisdiction; and (e) failed
to object, “move to quash” or move “for a plea
inabatement” [sic].
Claim Four:
Petitioner’s rights to a fair trial under the Fifth, Sixth,
and Fourteenth Amendments were violated because
the trial court (a) failed to advise Petitioner of his rights
under the Amended Information and allowed trial
counsel to waive those rights; (b) failed to record
Petitioner’s statement that there was a plea promise; (c)
failed to correctly advise Petitioner of the punishment
and penalty of his charges; (d) failed to correctly advise
Petitioner of the charge upon which the plea was
based; and (e) did not have subject matter jurisdiction.
Liberally construed, the court preliminarily decides that all four 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 July 26, 2012, Respondents 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 26, 2012: deadline for Respondents to file state court
records in support of answer or motion for summary judgment;
4.
If Respondents elect to file a motion for summary judgment, the following
procedures shall be followed by Respondents 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 Respondents’ brief shall be served
upon Petitioner except that Respondents are only required to provide
Petitioner with a copy of the specific pages of the record which are
cited in Respondents’ 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.
E.
No later than 30 days after the filing of Petitioner’s brief, Respondents
shall file and serve a reply brief. In the event that Respondents elect
not to file a reply brief, they should inform the court by filing a notice
stating that they 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, Respondents 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. Respondents are warned that the failure to file an
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answer, a designation and a brief in a timely fashion may result
in the imposition of sanctions, including the release of Petitioner;
5.
If Respondents elect to file an answer, the following procedures shall be
followed by Respondents and Petitioner:
A.
By July 26, 2012, Respondents 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, Respondents 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 Respondents’ brief shall
be served upon Petitioner at the time they are filed with the court
except that Respondents are only required to provide Petitioner with
a copy of the specific pages of the designated record which are cited
in Respondents’ 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 Respondents’ 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, Respondents
shall file and serve a reply brief. In the event that Respondents elect
not to file a reply brief, they should inform the court by filing a notice
stating that they will not file a reply brief and that the merits of the
petition are therefore fully submitted for decision.
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F.
6.
The Clerk of the court is directed to set a pro se case management
deadline in this case using the following text: August 27, 2012: check
for Respondents 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 11th day of June, 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
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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