Leon v. State of Nebraska et al
Filing
9
MEMORANDUM AND ORDER on the Petition for Writ of Habeas Corpus 8 . Upon initial review of the Amended Petition for Writ of Habeas Corpus (Filing No. 8 ), the Court preliminarily determines that petitioner's claims, as set forth in this Me morandum 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 Amended Petition for Writ of Habeas Corpus to Respondent and the Nebraska Attorney General by re gular first-class mail. By October 14, 2014, respondent shall file a motion for summary judgment or state court records in support of an answer. ( Pro Se Case Management Deadline set for 10/14/2014:deadline for respondent to file state court records in support of answer or motion for summary judgment) If respondent elects to file a motion for summary judgment, the procedures set forth within the order shall be followed by respondent and petitioner. If respondent elects to file an answer, the procedures set forth within the order shall be followed by respondent and petitioner. ( Pro Se Case Management Deadline set for 11/13/14:check for respondent to file answer and separate brief). 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. Ordered by Senior Judge Lyle E. Strom. (Copy mailed to pro se party and as directed)(MKR)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
IRA R. LEON,
)
)
Petitioner,
)
)
v.
)
)
STATE OF NEBRASKA, MICHAEL
)
KENNEY, Director of the
)
Nebraska Department of
)
Corrections, and DIANE
)
SABATKA-RHINE, Warden,
)
)
Respondents.
)
______________________________)
8:14CV16
MEMORANDUM AND ORDER
Petitioner has filed an Amended Petition for Writ of
Habeas Corpus (Filing No. 8).
The Court has conducted an initial
review of the Amended Petition for Writ of Habeas Corpus to
determine whether the claims made by petitioner are, when
liberally construed, potentially cognizable in federal court.
The claims asserted by petitioner are:
Claim One: Petitioner was denied
the effective assistance of counsel
in violation of the Sixth and
Fourteenth Amendments because
petitioner’s trial counsel failed
to conduct a reasonable pretrial
investigation. (Id. at CM/ECF pp.
52-55.)
Claim Two: Petitioner was denied a
fair trial and due process of law
in violation of the Fourteenth
Amendment because the State of
Nebraska failed to disclose
“crucial exculpatory evidence.”
(Id. at CM/ECF pp. 56-62.)
Claim Three: Petitioner was denied
a fair trial and due process of law
in violation of the Fourteenth
Amendment because, as a result of
the State’s actions in withholding
exculpatory evidence, petitioner’s
“plea was not done freely,
intelligently, voluntarily, or with
the understanding as required by
law.” (Id. at CM/ECF p. 62.)
Claim Four: Petitioner was denied
due process of law in violation of
the Fourteenth Amendment because
the Nebraska state courts were
“clearly wrong to deny [petitioner]
DNA testing[.]” (Id. at CM/ECF pp.
63-72.)
Claim Five: Petitioner was denied
the right to a fair trial in
violation of the Fourteenth
Amendment because counsel for the
State committed prosecutorial
misconduct when he presented
evidence he knew to be false or
misleading and failed to disclose
evidence that was favorable to the
defense. (Id. at CM/ECF pp. 7376.)
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 to
them or whether there are procedural bars that will prevent
petitioner from obtaining the relief sought.
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IT IS ORDERED:
1.
Upon initial review of the Amended Petition for
Writ of Habeas Corpus (Filing No. 8), 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 Amended Petition for Writ of
Habeas Corpus to Respondent and the Nebraska Attorney General by
regular first-class mail.
By October 14, 2014, respondent shall file a
3.
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:
October 14, 2014:
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
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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.
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
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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 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 October 14, 2014, respondent
shall file all state court records
that 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: nb“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
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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, nonretroactivity, 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.
E. No later than 30 days after the
filing of petitioner’s brief,
respondent shall file and serve a
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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: November
13, 2014: check for respondent to
file answer and separate brief.
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 26th day of August, 2014.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court
*This opinion may contain hyperlinks to other documents or Web sites.
The U.S. District Court for the District of Nebraska does not endorse,
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site does not affect the opinion of the court.
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