Abdulkadir v. Frakes et al

Filing 10

MEMORANDUM AND ORDER regarding Petition for Writ of Habeas Corpus 4 and Supplement 9 filed by Mohamed Abdulkadir. Upon initial review of the amended and supplemental habeas corpus petitions (Filing Nos. 4 and 9 ), the court preliminarily de termines that Petitioner's claims are potentially cognizable in federal court. By August 28, 2017, Respondents must file a motion for summary judgment or state court records in support of an answer. No later than 30 days after the relevant state court records are filed, Respondents must file an answer. No later than 30 days after Respondents' brief is filed, Petitioner must file and serve a brief in response. No later than 30 days after Petitioner's brief is filed, Respondents mus t file and serve a reply brief. *** Pro se case management deadline set for 8/28/2017: deadline for Respondents to file state court records in support of answer or motion for summary judgment. Pro se case management set for September 27, 2017: check for Respondents answer and separate brief. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party)(JAB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MOHAMED ABDULKADIR,
Petitioner,

8:17CV142

vs.
SCOTT R. FRAKES, Director of
Corrections; and BRAD HANSEN,
Warden at TSCI;

MEMORANDUM
AND ORDER

Respondents.
This matter is before the court on preliminary review of Petitioner Mohamed
Abdulkadir’s Amended Petition for Writ of Habeas Corpus (Filing No. 4) and
Supplemental Petition (Filing No. 9) 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 erroneously instructed the
jury (1) on “Sudden Quarrel” in Instruction No.
VI, specifically, “The test is an objective one.
Qualities peculiar to the defendant which render
him or her particularly excitable are not
considered”; (2) on “Intent” in Instruction No. V;
and (3) on Instruction No. IX, specifically, “You
are to use your common sense and general
knowledge that everyone has in determining the
meaning of any other term not defined above.”

Claim Two:

Petitioner was denied effective assistance of
counsel because trial counsel (1) introduced
Petitioner’s statements made to a corrections
employee as evidence during Petitioner’s
testimony at trial despite the trial court having
suppressed those statements under Miranda; (2)
made statements and questions at trial about
Petitioner’s religious beliefs and place of origin,
specifically comparing Petitioner’s religious
beliefs to those who were involved and carried out
“9/11”; and (3) failed to object to the jury
instructions identified in Claim One.

Claim Three:

Petitioner was denied effective assistance of
counsel because appellate counsel failed to raise
the jury instructions identified in Claim One as
error on direct appeal.

Claim Four:

Petitioner’s determinate life-to-life sentence for
second degree murder violates the ex post facto
clause because the statute requires an
indeterminate sentence of 20 years - life.

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. Respondents should be mindful of and, if
necessary, respond to Petitioner’s allegations in his amended and
supplemental petitions of his reasons for not presenting these claims to the
state courts. (See Filing No. 4 at CM/ECF pp. 5, 6, 12; Filing No. 9 at CM/ECF
pp. 4-5.)

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IT IS THEREFORE ORDERED that:
1.
Upon initial review of the amended and supplemental habeas corpus
petitions (Filing Nos. 4, 9), the court preliminarily determines that Petitioner’s
claims are potentially cognizable in federal court.
2.
By August 28, 2017, 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: August 28, 2017: deadline for Respondents to file state court records in
support of answer or motion for summary judgment.
3.
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
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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.

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.

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

By August 28, 2017, 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
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in a separate filing entitled: “Designation of
Records in Support of Answer.”

State Court

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
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.

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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:
September 27, 2017: check for Respondents’ 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.
Dated this 13th day of July, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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