Dubray v. Hansen

Filing 7

MEMORANDUM AND ORDER - Upon initial review of the Petition (Filing No. 1 ), the court preliminarily determines that Petitioner's claims, as limited above, are potentially cognizable in federal court. The other claims are dismissed with prejudi ce. By March 24, 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 24, 201 7: deadline for Respondent to file state court records 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 Respo ndent elects to file an answer, the following procedures 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: March 27, 2017: check for Re spondent'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) (LAC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
DOMINICK DUBRAY,

)
)
Petitioner,
)
)
V.
)
)
BRAD HANSEN, Warden Tecumseh )
Prison,
)
)
Respondent.
)

8:17CV021

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 five claims.
This is the second habeas petition filed Petitioner.1 The first one was recently
dismissed without prejudice for failure to comply with Rule 4 within the time set by
the undersigned. That dismissal does, however, render this petition a second or
successive petition requiring approval of the Court of Appeals under the provisions
of 28 U.S.C. § 2244(3)(A). See Slack v. McDaniel, 529 U.S. 473, 486 (2000).
With one exception, Claim 4 attacks “Trial Court Errors” but the grounds are
poorly articulated and they fail to clearly state a federal claim–the federal courts do
not serve to correct state trial court errors that do not violate established federal law.
Claim 5 pertaining to “Actual Innocence” is not a stand-alone federal claim, but a
means of avoiding procedural default. Thus, except as indicated below, these claims
are dismissed with prejudice.
The foregoing leaves four claims that require a response. Condensed and
summarized for clarity, those claims are:
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See 8:16-cv-00517 and filings 7-9.

Claim One:

Petitioner was denied effective assistance of trial
counsel for the 9 reasons set forth in Attachment A
appearing at filing no. 1, CM/ECF p. 6.

Claim Two:

Petitioner was denied effective assistance of
appellate counsel because Petitioner’s appellate
attorney (1) failed to raise issues of competency and
insanity or to attack trial counsel for failing to do so;
(2) failed to appeal the denial of a suppression
motion; (3) failed to raise the existence of biased pro
prosecution witnesses; and (4) failed to attack trial
counsel for lack of a zealous defense such as the
failure to present lay or expert witnesses.2

Claim Three:

Petitioner was denied due process of law as a result
of prosecutorial misconduct in that: (1) the
prosecutor failed to turn over exculpatory notes of
several witnesses some or all of whom may have
been expert witnesses; (2) the prosecutor misstated
the evidence in closing argument; (3) the prosecutor
forced Petitioner to appear in court in leg shackles in
front of the jury; (4) the prosecutor failed to seek a
competency hearing of Petitioner; (5) the prosecutor
appeared as both a prosecutor and witness; and (6)
the prosecutor failed to call Megan Reza as a
witness.3

Claim Four:

The trial court denied the Petitioner due process of
law when the trial judge failed to order a competency
hearing sua sponte.4

In this claim, there is more hard to understand verbiage that fails to state a
cognizable claim. To this extent, these "claims" are dismissed with prejudice.
2

In this claim, there is more hard to understand verbiage that fails to state a
cognizable claim. To this extent, these “claims” are dismissed with prejudice.
3

Recall I dismissed with prejudice the remainder of Claim Four for the
reasons stated in the text.
4

2

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, as limited above, are
potentially cognizable in federal court. The other claims are dismissed with
prejudice.
2.
By March 24, 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 24, 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
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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.

5.
If Respondent elects to file an answer, the following procedures
must be followed by Respondent and Petitioner:
A.

By March 24, 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.”
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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 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:
March 27, 2017: check for Respondent’s answer and
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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 21st day of February, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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