Bowman v. Frakes
Filing
6
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. Petitioner's Motion for Evidentiary Hearing (Filing No. 3 ) is denied without prejudice to reassertion. If Respondent elects to file a motion for summary judgment, the following procedures must be followed by Respondent and Petit ioner. If Respondent 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 6, 2018 : 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) (LAC)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
SAMUEL BOWMAN,
Petitioner,
8:17CV344
vs.
SCOTT FRAKES, Director;
MEMORANDUM
AND ORDER
Respondent.
This matter is before the court on preliminary review of Petitioner Samuel
Bowman’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 right to be free from unreasonable search and
seizure under the 4th, 5th, and 14th Amendments was
violated because the trial court erred in not granting
Petitioner’s motion to suppress for the following reasons:
(1) Petitioner revoked his consent to the search; (2)
Trooper Bauer’s tests on the tire of the rental car were
unreliable and could not form the basis for probable
cause; and (3) police lacked probable cause to initially
detain Petitioner and to later place him into custody.
Claim Two:
Petitioner’s rights to due process and against
unreasonable search and seizure under the 4th, 5th, and
14th Amendments were violated when the trial court
received into evidence the seized cocaine with its chain
of custody tainted by law enforcement’s violations of
federal law.
Claim Three:
Petitioner’s rights to due process and against
unreasonable search and seizure under the 4th, 5th, and
14th Amendments were violated because the trial court
erred in allowing Vicky Cowan to testify to the weight of
the seized cocaine.
Claim Four:
Petitioner was denied his rights against self-incrimination
and to counsel under the 5th and 6th Amendments
because the trial court failed to grant Petitioner’s motion
for a mistrial based on the prosecutor’s use of Petitioner’s
post-arrest silence and request for counsel as evidence of
his guilt.
Claim Five:
Petitioner was denied effective assistance of counsel in
violation of the 6th and 14th Amendments because trial
counsel: (1) failed to have the official court reporter
make a record of the closing arguments and (2) gave
unreasonable advice to Petitioner to not testify at trial.
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. This matter will progress as set out below.
Accordingly, Petitioner’s Motion for Evidentiary Hearing (Filing No. 3) is denied
at this time without prejudice to reassertion.
2
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.
Petitioner’s Motion for Evidentiary Hearing (Filing No. 3) is denied
without prejudice to reassertion.
3.
By February 5, 2018, 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: February 5, 2018: 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 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
3
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 February 5, 2018, Respondent must file all state court
records that are relevant to the cognizable claims. See, e.g.,
4
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
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
5
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 6, 2018: check for Respondent’s answer and 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 December, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge
6
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?