Floyd v. Houston
Filing
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MEMORANDUM AND ORDER- Upon initial review of the Petition (filing no. 1 ), the court preliminarily determines that Petitioners claims, as set forth in this Memorandum and Order, are potentially cognizable in federal court. The Clerk of the court i s directed to mail copies of this Memorandum and Order and the Petition to Respondent and the Nebraska Attorney General by regular first-class mail. By August 29, 2013, Respondent shall file a motion for summary judgment or state court records in support of an answer. No later than 30 days after the filing of Petitioners brief, Respondent shall file and serve a reply brief. The Clerk of the court is directed to set a pro se case management deadline in this case using the following text: Se ptember 29, 2013: check for Respondent to file answer and separate brief. ***Pro Se Case Management Deadlines: ( Pro Se Case Management Deadline set for 8/29/2013: deadline for Respondent to file state court records in supportof answer or motion for summary judgment) Ordered by Judge Joseph F. Bataillon. (Copy mailed to pro se party and as directed)(MKR)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
WILLIAM C. FLOYD JR.,
Petitioner,
v.
ROBERT P. HOUSTON,
Respondent.
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8:13CV195
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. Liberally construed,
Petitioner asserts three claims.
Claim One1:
Petitioner was denied the effective assistance of
counsel in violation of the Sixth and Fourteenth
Amendments because his trial counsel failed to (1)
properly prepare for trial, (2) investigate facts, (3)
move for an “order in-limine”, (4) subpoena
witnesses, (5) ask witnesses to bring medical records
of injuries sustained, (6) impanel an impartial jury,
(7) object to the state’s misconduct, (8) allow
Petitioner to testify, and (8) impeach M.D. Blain
Roffman’s testimony.
Claim Two2:
Petitioner was denied the effective assistance of
counsel in violation of the Sixth and Fourteenth
Claim One combines allegations from Grounds One and Two of the
Petition. (Filing No. 1 at CM/ECF pp. 11-21.)
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Claim Two contains allegations from Grounds Three and Seven of the
Petition. (Id. at CM/ECF pp. 21-25, 31-32.)
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Amendments because his appellate counsel failed to
(1) argue that the trial court abused its discretion,
and (2) raise and preserve federal constitutional
issues central to Petitioner’s case.
Claim Three3:
Petitioner was denied due process of law in violation
of the Fourteenth Amendment because the trial court
(1) accepted the jury’s guilty verdict, (2) gave
erroneous jury instructions, (3) failed to remove a
juror for cause, (4) failed to give sufficient notice of
the nature and cause of the action, (5) denied
Petitioner’s motion to recuse, (6) committed judicial
misconduct, (7) failed to give Petitioner a hearing on
his motion for postconviction relief, (8) failed to
appoint postconviction counsel, (9) failed to recuse
itself, (10) failed to acknowledge a discovery
motion, and (11) failed to depose witnesses.
Liberally construed, the court preliminarily decides that 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.
Claim Three contains allegations from Grounds “One,” Four, and Five of
the Petition. (Id. at CM/ECF pp. 25-28, 34-41.) Petitioner has labeled several
Grounds as “GROUND ONE.” (Id.)
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2.
The Clerk of the court is directed to mail copies of this Memorandum
and Order and the Petition to Respondent and the Nebraska Attorney General by
regular first-class mail.
3.
By August 29, 2013, 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: August 29, 2013: 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
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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 the
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.
5.
If Respondent elects to file an answer, the following procedures shall be
followed by Respondent and Petitioner:
A.
By August 29, 2013, 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
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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.
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.
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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: September 29,
2013: 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 16th day of July, 2013.
BY THE COURT:
s/ Joseph F. Bataillon
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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