Martin v. State of Nebraska

Filing 10

MEMORANDUM AND ORDER that upon initial review of the Petition (Filing No. 1 ), the court preliminarily determines that Petitioner's claims are potentially cognizable in federal court. By October 11, 2016, Respondent must file a motion for s ummary 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 11, 2016: deadline for Respondent to file state court record s in support of answer or motion for summary judgment. If Respondent elects to file a motion for summary judgment, the following procedures must be followed by Respondent and Petitioner. If Respondent elects to file an answer, the following procedur es must befollowed by Respondent and Petitioner. The clerk of the court is directed to set a pro se case management deadline in this case using the following text: November 9, 2016: check for Respondent's answer and separate brief. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (LAC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
CARL A. MARTIN,
Petitioner,
v.
STATE OF NEBRASKA,
Respondent.

)
)
)
)
)
)
)
)
)
)

8:16CV246

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. It appears Petitioner has
made three claims.
Condensed and summarized for clarity, the claims asserted by Petitioner are:
CLAIM ONE:

Petitioner was deprived of his Constitutional rights
to be free from unreasonable seizure and arrest and
due process because (a) he was seized and arrested
for a misdemeanor offense without probable cause or
a warrant as a pretext to investigate other crimes and
(b) he was coerced into giving statements and
evidence of other crimes immediately following the
seizure and arrest.

CLAIM TWO:

Regarding Counts I through III, Petitioner was
denied his Constitutional right to due process
because the sentencing judge failed to find, as

required by Nebraska law, that the alleged victims
suffered serious injury.
CLAIM THREE: Petitioner was denied his Constitutional right to due
process because he was incompetent to stand trial or
participate in sentencing.1
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 are potentially cognizable in federal court.
2.
By October 11, 2016, Respondent must file a motion for summary
judgment or state court records in support of an answer. The clerk of the court is
1

Petitioner claims to be presently incompetent yet his petition is as (or more)
coherent as many pro se habeas petitions. There is nothing in the Petitioner’s petition
that would suggest that he is incapable of proceeding with this action. I note that
Petitioner’s hand written petition argues that “these claims are before the AEDPA .
. . in 1996 . . . .” (Filing no. 1 at CM/ECF p. 13.) That sophisticated argument alone
shows Petitioner’s competence to proceed with this action. The fact, if it is one, that
he may suffer from anxiety and depression or was found to be a mentally disordered
sex offender under Nebraska law is insufficient to establish that he is now
incompetent. The Respondent may wish to address this issue and the related issue of
whether Petitioner’s alleged mental incompetence is sufficient to excuse his
exceedingly tardy petition (his conviction was affirmed by the Nebraska Supreme
Court in 1989).
2

directed to set a pro se case management deadline in this case using the following text:
October 11, 2016: deadline for Respondent to file state court records in support of
answer or motion for summary judgment.
3.
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.

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.
3

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.

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.

4.
If Respondent elects to file an answer, the following procedures must be
followed by Respondent and Petitioner:
A.

By October 11, 2016, 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
4

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
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.

F.

The clerk of the court is directed to set a pro se case management
deadline in this case using the following text: November 9, 2016:
check for Respondent’s answer and separate brief.

5

5.
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 25th day of August, 2016.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

6