Smith v. Britten

Filing 6

MEMORANDUM AND ORDER that upon initial review of the Petition (Filing No. 1 ), the court preliminarily determines that Petitioner's claims are potentially cognizable in federal court. By October 16, 2017, Respondent must file a motion for sum mary 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: October 16, 2017: deadline for Respondent to file state court records i n 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 procedure s 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: November 14, 2017: check for Respondent's answer and separate brief. No discovery shall be undertaken without leave of the court. See Rule 6 ofthe 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
GERALD D. SMITH,
Petitioner,
v.
FRED BRITTEN,
Respondent.

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8:17CV278
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.
Condensed and summarized for clarity, the claims asserted by Petitioner are:
Claim One:

Petitioner was denied due process of law when the
trial court failed to order, on its own motion, an
evaluation of Petitioner for competency purposes.

Claim Two:

Petitioner was denied due process of law and the right
to counsel when the trial court allowed Petitioner to
represent himself during part of the trial.

Claim Three:

Trial counsel was ineffective because trial counsel
failed to raise the issue of Petitioner’s competency to
stand trial.

Claim Four:

The trial court denied Petitioner due process of law
when the court refused to issue compulsory process to
secure the attendance of Petitioner’s witnesses.

Claim Five:

The trial court denied Petitioner due process of law
when the trial court denied a motion for new trial (a)
after having been apprised that Oscar Romero was
threatening Petitioner in an effort to stop Petitioner
from entering into a cooperation agreement; (b)
because the trial court would not allow Petitioner to
call his trial counsel as a witness; and (c) because the
trial court precluded Petitioner from using a video and
video equipment during trial while allowing the
prosecutor to do so.

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 are potentially cognizable in federal court.
2.
By October 16, 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:
October 16, 2017: deadline for Respondent to file state court records in support of
answer or motion for summary judgment.

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3.
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 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 October 16, 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
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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: November 14, 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.
DATED this 31st day of August, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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