Harris v. Gage
Filing
9
MEMORANDUM AND ORDER - Upon initial review of the habeas corpus petition (Filing No. 1 ) and supplemental petition (Filing No. 5 ), the court preliminarily determines that Claims One, Two, Four, Five, Six, and Eight, as they are set forth in this M emorandum and Order, are potentially cognizable in federal court. Claims Three and Seven are not cognizable and they are dismissed. The clerk of the court is directed to mail copies of this Memorandum and Order and the habeas corpus petition to Respo ndent and the Nebraska Attorney General by regular first-class mail. By March 26, 2017, 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 managem ent deadline in this case using the following text: March 26, 2017: deadline for Respondent 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 i n this case using the following text: April 25, 2017: check for Respondent's answer and separate 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) (KLF)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MICHAEL E. HARRIS,
Petitioner,
8:16CV442
vs.
MEMORANDUM
AND ORDER
BRIAN GAGE,
Respondent.
This matter is before the court on preliminary review of Petitioner Michael
E. Harris’s Petition for Writ of Habeas Corpus (Filing No. 1) and “Supplemental
Habeas Corpus” (Filing No. 5) brought pursuant to 28 U.S.C. § 2254. The purpose
of this review is to determine whether Petitioner’s claims, when liberally
construed, are potentially cognizable in federal court. Condensed and summarized
for clarity, Petitioner’s claims are:
Claim One:
Petitioner was denied the right to a fair trial
because the trial court prohibited the defense from
calling Dr. Terry Davis as a witness to testify
about the behavioral effect that drugs had on the
victim but allowed the State to call the pathologist
at trial to testify about the same.
Claim Two:
Petitioner was denied the right to confrontation
because the trial court allowed the State to
question him at trial about Tyler Johnson’s hearsay
statements to police when the State did not prove
Johnson was unavailable pursuant to Neb. Rev.
Stat. § 27-804 or that Petitioner had a prior
opportunity to cross-examine Johnson.
Claim Three:
Petitioner was denied due process because the
state postconviction court failed to “properly reach
the merits” on his claim of ineffective assistance of
trial counsel for failing to file a motion in limine to
exclude prior bad acts evidence.
Claim Four:
Petitioner was denied the right to a fair trial
because the trial court failed to properly instruct
the jury on the distinction between second degree
murder and voluntary manslaughter and that intent
is an element of second degree murder and
voluntary manslaughter.
Claim Five:
Petitioner was denied the right to effective
assistance of trial counsel because trial counsel
failed to interview Betty Woods and Lee Perry and
present them as witnesses at trial to support the
defense theory of self-defense.
Claim Six:
Petitioner’s convictions for first degree murder and
use of a deadly weapon to commit a felony were
not supported by sufficient evidence.
Claim Seven:
Petitioner was denied due process because the
Nebraska Supreme Court declined in his
postconviction appeal to consider his claim of
ineffective assistance of trial counsel for failing to
request a jury instruction on sudden quarrel
manslaughter.
2
Claim Eight:
Petitioner’s plea-based conviction for possession
of a deadly weapon by a prohibited person was not
supported by sufficient evidence because he did
not have counsel for his prior felony conviction.
The court determines that these claims, when liberally construed, are
potentially cognizable in federal court. However, the court cautions Petitioner 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.
In contrast, Claims Three and Seven are not cognizable habeas corpus
claims because they are based on errors in the state postconviction proceedings.
Errors during state postconviction review are not cognizable in a federal habeas
corpus action. See Jenkins v. Houston, 2006 WL 126632 (D. Neb. 2006) (citing
multiple authorities). Claims Three and Seven are dismissed.
IT IS THEREFORE ORDERED that:
1.
Upon initial review of the habeas corpus petition (Filing No. 1) and
supplemental petition (Filing No. 5), the court preliminarily
determines that Claims One, Two, Four, Five, Six, and Eight, as they
are set forth in this Memorandum and Order, are potentially
cognizable in federal court. Claims Three and Seven are not
cognizable and they are dismissed.
2.
The clerk of the court is directed to mail copies of this Memorandum
and Order and the habeas corpus petition to Respondent and the
Nebraska Attorney General by regular first-class mail.
3.
By March 26, 2017, Respondent must file a motion for summary
judgment or state court records in support of an answer. The clerk of
3
the court is directed to set a pro se case management deadline in this
case using the following text: March 26, 2017: 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.
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
4
not submit other documents unless directed to do so by the
court.
E.
F.
5.
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.
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.
If Respondent elects to file an answer, the following procedures must
be followed by Respondent and Petitioner:
A.
By March 26, 2017, 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
5
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
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.
6
F.
6.
The clerk of the court is directed to set a pro se case
management deadline in this case using the following text:
April 25, 2017: check for Respondent’s answer and separate
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.
Dated this 10th day of February, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge
7
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?