Kinser v. Sabatka-Rine

Filing 11

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 Petition to Respondent and the Nebraska Attorney General by regular first-class mail. By September 29, 2014, Respondent shall file a motion for summary judgment or s tate 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: September 29, 2014: deadline for Respondent to file state court records in support of answe r or motion for summary judgment. If Respondent elects to file an answer, the following procedures shall be followed by Respondent and Petitioner: A. By September 29, 2014, Respondent shall file all state court records that are relevant to the cogni zable claims. Those records shall be contained in a separate filing entitled: Designation of State Court Records in Support of Answer. The Clerk of the court is directed to set a pro se case management deadline in this case using the following text: October 28, 2014: check for Respondent to file answer andseparate 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 Richard G. Kopf. (Copy mailed to pro se party and as directed)(GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
WILLIAM D. KINSER JR.,
Petitioner,
v.
DIANE SABATKA-RINE,
Respondent.

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8:14CV187

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

Petitioner was denied due process of law in violation
of the Fourteenth Amendment because he “was
sentenced [as] a habitual offender where the felony
conviction is already an enhancement of a
misdemeanor.” (Id. at CM/ECF p. 5.)

Claim Two:

Petitioner was denied due process of law in violation
of the Fourteenth Amendment because he was
sentenced “in a manner in which the intent of the
trial court [was] frustrated by the habitual offender
statute.” (Id. at CM/ECF p. 7.)

Claim Three:

Petitioner was denied the effective assistance of
counsel in violation of the Sixth and Fourteenth
Amendments because Petitioner’s trial counsel

“allowed the district court to further enhance an
already enhanced offense.” (Id. at CM/ECF p. 8.)
Claim Four:

Petitioner was denied the effective assistance of
counsel in violation of the Sixth and Fourteenth
Amendments because Petitioner’s trial counsel
“failed to properly cross-examine witnesses.” (Id.)

Claim Five:

Petitioner was denied due process of law in violation
of the Fourteenth Amendment because the
prosecution “used prior convictions and sentences
[that] were insufficient to be used for enhancement
purposes.” (Id. at CM/ECF p. 10.)

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.
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 Petition to Respondent and the Nebraska
Attorney General by regular first-class mail.

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3.
By September 29, 2014, 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: September 29, 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 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.

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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 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 September 29, 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:
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“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.

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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:
October 28, 2014: 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 14th day of August, 2014.
BY THE COURT:
Richard G. Kopf
Senior United States District Judge

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