Balvin v. Frakes

Filing 6

MEMORANDUM AND ORDER- Upon initial review of the habeas corpus petition (Filing No. 1 ), the Court preliminarily determines that Petitioners claims, as they are set forth in this order, are potentially cognizable in federal court. The Clerk of the Court is directed to mail copies of this order and the habeas corpus petition to Respondent and the Nebraska Attorney General by regular first-class mail. By June 8, 2015, Respondent must file a motion for summary judgment or state court records i n support of an answer. If Respondent elects to file a motion for summary judgment, the procedures set forth within the order must be followed by Respondent and Petitioner. If Respondent elects to file an answer, the procedures set forth within th e order must be followed by Respondent and Petitioner. 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. ***Pro Se Case Management Deadlines: ( Pro Se Case Management Deadline set for 6/8/2015: deadline for Respondent to file state court records in support of answer or motion for summary judgment). ( Pro Se Case Management Deadline set for July 7, 2015: check for Respondent's answer and separate brief).Ordered by Chief Judge Laurie Smith Camp. (Copy mailed to pro se party as directed)(MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
SONNY D. BALVIN,
Petitioner,
v.
SCOTT FRAKES,
Respondent.

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8:15CV56

MEMORANDUM
AND ORDER

Petitioner filed a Petition for Writ of Habeas Corpus (Filing No. 1) on February 17,
2015. The Court now conducts a preliminary review of the habeas corpus petition to
determine whether the claims made by Petitioner are, when liberally construed, potentially
cognizable in federal court. Condensed and summarized for clarity, Petitioner’s claims are
as follows:
Claim One:

Petitioner was denied the effective assistance of counsel in
violation of the Sixth and Fourteenth Amendments because
trial counsel (a) failed to impeach Petitioner’s accuser at trial
(id. at ECF 5); and (b) failed to raise a hearsay objection when
the prosecution offered evidence of “recorded telephone
conversations” between Petitioner and two other parties (id. at
ECF 7-8).

Claim Two:

Petitioner was denied the effective assistance of counsel in
violation of the Sixth and Fourteenth Amendments because
appellate counsel failed to argue that (a) trial counsel was
ineffective for failing to impeach Petitioner’s accuser (id. at
ECF at 5); (b) trial counsel was ineffective for failing to raise a
hearsay objection when the prosecution offered evidence of
“recorded telephone conversations” between Petitioner and
two other parties (id. at ECF 7-8); (c) the trial court erred in
admitting evidence of letters from Petitioner to his former
girlfriend (id. at ECF 9); and (d) the trial court erred in admitting
testimony by Petitioner’s fiance concerning her sexual
relationship with Petitioner (id. at ECF 11-12).

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 they are set forth in this order, are
potentially cognizable in federal court.
2.

The Clerk of the Court is directed to mail copies of this order and the habeas

corpus petition to Respondent and the Nebraska Attorney General by regular first-class
mail.
3.

By June 8, 2015, Respondent must 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: June 8, 2015: 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 must be followed by Respondent and Petitioner:
A.

The motion for summary judgment must be accompanied by a
separate brief, submitted at the time the motion is filed.

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B.

The motion for summary judgment must be supported by any state
court records that are necessary to support the motion.

Those

records must 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 must be served
on Petitioner except that Respondent is only required to provide
Petitioner with a copy of the specific pages of the record that 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
must 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 must file and serve a brief in opposition to the
motion for summary judgment. Petitioner may not submit other
documents unless directed to do so by the court.

E.

No later than 30 days after Petitioner’s brief is filed, Respondent must
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.

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F.

If the motion for summary judgment is denied, Respondent must file
an answer, a designation and a brief that complies with terms of this
order. (See the following paragraph.) The documents must be filed
no later than 30 days after the denial of the motion for summary
judgment. Respondent is warned that failure to file an answer, a
designation and a brief in a timely fashion may result in the
imposition of sanctions, including Petitioner’s release.

5.

If Respondent elects to file an answer, the following procedures must be

followed by Respondent and Petitioner:
A.

By June 8, 2015, Respondent must 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 must be contained in a separate filing entitled:
“Designation of State Court Records in Support of Answer.”

B.

No later than 30 days after the relevant state court records are filed,
Respondent must file an answer. The answer must be accompanied
by a separate brief, submitted at the time the answer is filed. Both the
answer and the brief must 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

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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 must
be served on 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 that 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
must set forth the documents requested and the reasons the
documents are relevant to the cognizable claims.

D.

No later than 30 days after Respondent’s brief is filed, Petitioner must
file and serve a brief in response. Petitioner must not submit any
other documents unless directed to do so by the court.

E.

No later than 30 days after Petitioner’s brief is filed, Respondent must
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.

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F.

The Clerk’s Office is directed to set a pro se case management
deadline in this case using the following text: July 7, 2015: check for
Respondent’s 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 22nd day of April, 2015.
BY THE COURT:
s/Laurie Smith Camp
Chief United States District Judge

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