Shadle v. State of Nebraska

Filing 8

MEMORANDUM AND ORDER that 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 Memorandum and Order, are potentially cognizable in feder al court. 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. By March 31, 2017, Respondent must file a motion f or 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: March 31, 2017: deadline for Respondent to file state court reco rds 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 proce dures must be followed 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: April 30, 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)(LAC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
DILLON SHADLE
also known as Riley Nicole Shadle,
8:16CV494
Petitioner,
MEMORANDUM
AND ORDER

vs.
STATE OF NEBRASKA,
Respondent.

This matter is before the court on preliminary review of Petitioner Dillon
Shadle’s Petition for Writ of Habeas Corpus (Filing No. 1) brought pursuant to 28
U.S.C. § 2254. The court notes that Petitioner filed a previous Petition for Writ of
Habeas Corpus. See Dillon Andrew Shadle v. State of Nebraska, 8:16CV186 (D.
Neb.). Because the court dismissed Petitioner’s first habeas petition without
prejudice and did not adjudicate any of Petitioner’s claims on the merits, the court
will not treat the current habeas petition as a “second or successive.”1
Accordingly, 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:

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Petitioner was not guilty of the offenses because of
mental disease or defect, specifically his recent
diagnosis of Gender Identity Disorder.

See similarly, U.S. v. Sellner, 773 F.3d 927 (8th Cir. 2014) (petitioner’s
November § 2255 motion should not have been dismissed as “second or
successive” because her July § 2255 motion had not been adjudicated on the merits
or dismissed with prejudice).

Claim Two:

Petitioner was denied effective assistance of
counsel because trial counsel did not raise the
issue of his competency and that he should have
been found not guilty because of mental defect.

Claim Three:

Petitioner was denied effective assistance of
counsel because trial counsel failed to raise his
mental health and past sexual abuse as mitigating
circumstances for his convictions and sentences.

Claim Four:

Petitioner’s sentences are excessive.

Claim Five:

The victim’s evidence was inadmissible against
Petitioner because it was not corroborated by other
evidence.

Claim Six:

Petitioner’s privilege against self-incrimination
was violated because he was interrogated after he
invoked his right to counsel and before counsel
was made available and, therefore, all evidence
seized thereafter from his vehicle was
inadmissible.

Claim Seven:

Petitioner was denied effective assistance of
counsel because trial counsel failed to object to the
introduction of the illegally seized evidence and to
it being considered at sentencing.

Claim Eight:

Petitioner was denied effective assistance of
counsel because trial counsel did not allow him to
review the presentence report.

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Claim Nine:

Petitioner was denied effective assistance of
counsel because counsel did not raise on direct
appeal “the issue of disproportionate sentences for
acts arising from the same criminal act and
receiving maximum or sentences approaching the
maximum on separate charged counts arising from
the same or the continuation of the same criminal
act.”

Claim Ten:

Petitioner’s pleas were not entered knowingly,
intelligently, and voluntarily because of his
medication.

Claim Eleven:

Petitioner was denied effective assistance of
counsel because trial counsel failed to raise that his
pleas were not entered knowingly, intelligently,
and voluntarily due to his medication.

Claim Twelve:

Petitioner’s Fourth Amendment right to be free
from unreasonable search and seizure was violated
when his vehicle was searched without a warrant
and without consent.

Claim Thirteen:

Petitioner was denied due process when the judge
at his preliminary hearing was a former prosecutor
who previously prosecuted him.

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.
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IT IS THEREFORE ORDERED that:
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 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 habeas corpus petition to Respondent and the
Nebraska Attorney General by regular first-class mail.

3.

By March 31, 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 management deadline in this
case using the following text: March 31, 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.”

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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.

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.

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5.

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

By March 31, 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
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

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the documents requested and the reasons the documents are
relevant to the cognizable claims.
D.

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.

6.

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.

The clerk of the court is directed to set a pro se case
management deadline in this case using the following text:
April 30, 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 14th day of February, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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