In Re Application of: Amikhet En Maati

Filing 7

MEMORANDUM AND ORDER - Upon initial review of the habeas corpus 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 section 2254 petition to Respondent and the Nebraska Attorney General by regular first-class mail. By November 30, 2012, Respondent shall file a motion for sum mary 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: November 30, 2012: deadline for Respondent to file state court records in support of answer or motion for summary judgment. If Respondent elects to file an answer, the procedures set out in this Memorandum and Order shall be followed by Respondent and Petitioner. The Clerk of the court is directed to set a pro se case management deadline in this case using the following text: December 31, 2012: check for Respondent to file answer and separate brief. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party and as directed)(GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
AMIKHET EN MAATI,
Petitioner,
v.
STATE OF NEBRASKA,
Respondent.

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8:12CV314

MEMORANDUM
AND ORDER

Petitioner has filed a Petition for Writ of Habeas Corpus. (Filing No. 1.) The
court has conducted an initial review of the Petition for Writ of Habeas Corpus 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 due process of law in violation
of the Fifth, Sixth, and Fourteenth Amendments
because (1) Petitioner has been illegally detained
under an invalid order of commitment from the
Sarpy County Board of Mental Health; and (2) the
order of commitment was issued by Ann Ebsen
(“Ebsen”) who previously served as legal counsel for
Petitioner’s ex-wife in criminal proceedings arising
from the same set of facts under which Petitioner
was charged and convicted, and Ebsen failed to
recuse herself.

Claim Two:

Petitioner was denied due process of law in violation
of the Fourteenth Amendment because (1) Petitioner
did not receive a hearing within seven calendar days

of being taken into emergency protective custody as
required by Neb. Rev. Stat. § 71-1207; (2) Petitioner
was not served a summons of any proceedings
against him in violation of Neb. Rev. Stat. § 711207; (3) Petitioner was detained without an
evaluation pursuant to Neb. Rev. Stat.§ 83-174; (4)
these actions resulted in Petitioner’s detainment for
a period of time in excess of that allowed under
Nebraska’s Sex Offender Commitment Act; (5) the
Sarpy

County Attorney’s

Office

engaged

in

prosecutorial misconduct by seeking to detain
Petitioner even though the evaluation violated Neb.
Rev. Stat. § 83-174.02 in several ways; and (6) the
Board of Mental Health chairperson determined
Petitioner’s commitment on a monetary basis, which
is

prohibited

by

Nebraska’s

Sex

Offender

Commitment Act.
Claim Three:

Petitioner was denied the effective assistance of
counsel in violation of the Sixth and Fourteenth
Amendments because his counsel (1) failed to
consult with Petitioner regarding the Board of
Mental Health proceedings; (2) failed to protect
Petitioner’s interests at said proceedings; (3)
undertook unlawful representation of Petitioner
without Petitioner’s express consent or a lawful
appointment; (4) failed to conduct an adequate
investigation; (5) failed to call witnesses; and (6)
failed to follow court rules.

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Liberally construed, the court preliminarily decides that Claims One through
Three 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 to
them 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 habeas corpus 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 section 2254 petition to Respondent and the Nebraska Attorney General
by regular first-class mail.
3.

By November 30, 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:
November 30, 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:
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“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.

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
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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 November 30, 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 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
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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: December 31,
2012: 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 16 th day of October, 2012.
BY THE COURT:
Richard G. Kopf

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Senior United States District Judge

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