Gardner v. State of Nebraska

Filing 10

MEMORANDUM AND ORDER - 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 cou rt. By May 5, 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: May 5, 2017: dea dline for Respondent to file state court records in support of answer or motion for summary judgment. 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) (KLF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ANTHONY W. GARDNER,
Petitioner,

8:16CV562

vs.
STATE OF NEBRASKA,

MEMORANDUM
AND ORDER

Respondent.
This matter is before the court on preliminary review of Petitioner Anthony
W. Gardner’s Petition for Writ of Habeas Corpus (Filing No. 1) 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’s convictions were obtained by use of
evidence gained pursuant to an unconstitutional
search and seizure because the search warrant was
invalid for the following reasons: (1) the search
warrant was dated November 12, 2014, but the
search occurred on November 8, 2014, after
Petitioner was arrested and in custody; (2) the
addresses listed in the search warrant for the
vehicles searched were incorrect; and (3) there is
no evidence that Petitioner was the owner of the
motor home.

Claim Two:

Petitioner’s convictions were obtained by
malicious prosecution for the following reasons:
(1) not all of the pages of the Morrill County
Sheriff’s Office inventories listed the description
of items or dates of searches; (2) Petitioner was
charged with possessing six different firearms but

law enforcement listed only one on the official
inventory list; and (3) some of the firearms were
returned to their owners.
Claim Three:

Petitioner was denied effective assistance of
counsel when appellate counsel failed to raise
Claims One and Two on direct appeal.

Claim Four:

Petitioner was denied effective assistance of
counsel when trial counsel allowed the prosecution
and law enforcement coerce Petitioner into a plea
agreement.

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.
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.
By May 5, 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: May 5, 2017: 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:

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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.

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.

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

By May 5, 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.

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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:
June 4, 2017: check for Respondent’s answer and separate
brief.

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.

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Dated this 21st day of March, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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