Higel v. Frakes et al
Filing
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MEMORANDUM AND ORDER - Upon initial review of the Petition (Filing No. 1 ), the court preliminarily determines that Petitioner's claims are potentially cognizable in federal court. The clerk of the court is directed to mail copies of th is Memorandum and Order and the habeas corpus petition to Respondents and the Nebraska Attorney General by regular first-class mail. The clerk of the court is directed to set a pro se case management deadline in this case using the following tex t: November 25, 2016: deadline for Respondents to file state court records in support of answer or motion for summary judgment. The clerk of the court is directed to set a pro se case management deadline in this case using the following text: December 26, 2016: check for Respondents' answer and separate brief. 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
JAIME L. HIGEL,
Petitioner,
V.
SCOTT R. FRAKES, and DENISE
SCROBECKI,
Respondents.
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8:16CV261
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. Petitioner has made four
claims.
Condensed and summarized for clarity, the claims asserted by Petitioner are:
Claim One:
Petitioner was the victim of prosecutorial
misconduct because the prosecution breached the
plea agreement by asking for a consecutive sentence.
Claim Two:
Petitioner’s guilty plea was not knowingly,
intelligently, and voluntarily made.
Claim Three:
Petitioner was denied effective assistance of trial
counsel because Petitioner’s attorney (1) failed to
accurately relay the terms of the plea agreement; (2)
did not review the presentence report with Petitioner;
(3) did not get the sentencing agreement on the
record; (4) failed to file a motion to withdraw guilty
plea; (5) failed to properly investigate the case and
prepare a defense; (6) failed to file a motion to
suppress evidence; (7) had a conflict of interest; and
(8) failed to present Petitioner’s character evidence.
Claim Four:
Petitioner was denied effective assistance of
appellate counsel because Petitioner’s appellate
attorney (1) failed to raise ineffective assistance of
counsel for failing to state the sentencing agreement
on the record and (2) failed to petition the Nebraska
Supreme Court for further review.
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.
The clerk of the court is directed to mail copies of this Memorandum and
Order and the habeas corpus petition to Respondents and the Nebraska Attorney
General by regular first-class mail.
3.
By November 25, 2016, Respondents 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:
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November 25, 2016: 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 must be followed by Respondents 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 Respondents’ brief must be
served on Petitioner except that Respondents are only required to
provide Petitioner with a copy of the specific pages of the record
that 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 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, Respondents
must 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 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. Respondents are 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 Respondents elect to file an answer, the following procedures must be
followed by Respondents and Petitioner:
A.
By November 25, 2016, Respondents 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, Respondents 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 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
must be served on 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 that are cited in Respondents’ brief. In the event that the
designation of state court records is deemed insufficient by
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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 Respondents’ 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, Respondents
must 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: December 26,
2016: check for Respondents’ 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 11th day of October, 2016.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge
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