Davis v. Gage et al

Filing 6

MEMORANDUM AND ORDER - Upon initial review of the habeas corpus 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 Cler k 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 February 23, 2015, Respondents shall file a motion for summary judgment or st ate court records in support of an answer. ***Pro Se Case Management Deadlines: If Respondents elect to file a motion for summary judgment, the procedures set forth within the order shall be followed by Respondents and Petitioner and If respondent s elect to file an answer, the procedure set forth within the order shall be followed by Respondents and Petitioner. ( Pro Se Case Management Deadline set for 2/23/2015: deadline for Respondents to file state court records in support of answer or motion for summary judgment) (Pro se Case Management Deadline set for 2/24/2015: check for Respondents to file answer and separate brief)Ordered by Chief Judge Laurie Smith Camp. (Copy mailed to pro se party and as directed)(MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JASON DAVIS,
Petitioner,
v.
BRIAN GAGE, Warden, Tecumseh
State Correctional Institute, and
MIKE KENNEY, Director, Nebraska
Department of Corrections,
Respondents.

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8:14CV265

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 his plea was not knowing and
voluntary. (Filing No. 1 at CM/ECF p. 5.)

Claim Two:

Petitioner was denied the effective assistance of counsel in
violation of the Sixth and Fourteenth Amendments because
trial counsel coerced him into entering into a plea agreement
(id. at CM/ECF p. 5), and failed to argue that Petitioner was
entitled to a three-day notice prior to the state district court’s
determination on whether he was a habitual criminal (id. at
CM/ECF pp. 9-10).

Claim Three:

Petitioner was denied due process of law in violation of the
Fourteenth Amendment because the state district court failed

to appoint a special prosecutor to represent the State of
Nebraska. (Id. at CM/ECF p. 7.)
Claim Four:

Petitioner was denied due process of law in violation of the
Fourteenth Amendment because Petitioner did not receive a
three-day notice prior to the state district court’s determination
on whether he was a habitual criminal. (Id. at CM/ECF p. 8.)

Claim Five:

Petitioner was denied the effective assistance of counsel in
violation of the Sixth and Fourteenth Amendments because
appellate counsel did not perfect Petitioner’s direct appeal. (Id.
at CM/ECF pp. 8-9.)

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.
Accordingly,

IT IS ORDERED:
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 Respondents and the Nebraska Attorney General by regular
first-class mail.
3.
By February 23, 2015, 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: February
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23, 2015: 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.

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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
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 February 23, 2015, Respondents 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:
“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
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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.

F.

The Clerk of the court is directed to set a pro se case management
deadline in this case using the following text: February 24, 2015:
check for Respondents 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 8th day of January, 2015.
BY THE COURT:
s/Laurie Smith Camp
Chief United States District Judge

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