Yanga v. State of Nebraska et al

Filing 5

ORDER - Upon initial review of the habeas corpus petition (Filing No. 4 ), the court preliminarily determines that Petitioner's claims, as they are set forth in this Memorandum and Order, are potentially cognizable in federal court. By May 21, 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: May 21, 2018: deadline for Res pondent to file state court records in support of answer or motion for summary judgment. The clerk of the court is directed to set a pro se case management deadline in this case using the following text: June 18, 2018: check for Respondent's answer and separate brief. 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
EMMANUEL S. YANGA,
Petitioner,
v.
STATE OF NEBRASKA, DIR.
SCOTT FRAKES, and MADSEN,
Warden,
Respondents.

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8:18CV89

ORDER

This matter is before the court on preliminary review of Petitioner Emanuel S.
Yanga’s Petition for Writ of Habeas Corpus (Filing No. 4) 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, the claims asserted by Petitioner
regarding the state misdemeanor case in the County Court of Lancaster County,
Nebraska (county court #CR 14 0017008, appeal to district court # CR-15-552 and
appeal to the Nebraska Court of Appeals # A-17-728) are set forth below:
Claim One: Both trial counsel and appellate counsel provided ineffective
assistance of counsel under the Sixth Amendment.
Claim Two: The prosecutor engaged in prosecutorial misconduct in violation of
the Due Process Clause.
Claim Three: The trial court abused its discretion in violation of the Due Process
Clause.

Claim Four: The Petitioner was denied Due Process of Law, Equal Protection
of the Law, and the Fifth Amendment right to remain silent and to be free from
double jeopardy by the trial court.1
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. 4), 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 21, 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: May 21, 2018:
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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The Petitioner’s amended petition (filing no. 4) is the one and only operative
petition and all prior petitions are dismissed without prejudice. The amended petition
is vague. I am sorry that I cannot focus this case any better, but counsel for the
Respondent should respond as best counsel can to the “supporting facts” portion of each
claim. To the extent that Petitioner raises other claims beyond the four set forth above,
I deny them because they fail to state cognizable federal claims.
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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 motion and brief. In the event that the
designation of state court records is deemed insufficient by
Petitioner or Petitioner needs additional records from the
designation, 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 21, 2018, 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 answer and brief. In the event that the designation
of state court records is deemed insufficient by Petitioner or
Petitioner needs additional records from the designation, 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 18, 2018: 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 4th day of April, 2018.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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