Freemont v. State of Nebraska et al

Filing 4

MEMORANDUM AND ORDER - IT IS THEREFORE ORDERED 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 potenti ally cognizable in federal court. By October 15, 2018, 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: October 15, 2018: deadline for Respondents 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 followi ng text: November 13, 2018: check for Respondents' 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)(TCL)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
RUFUS BLAINE FREEMONT,
Petitioner,
vs.
STATE OF NEBRASKA, and
DOUGLAS COUNTY,

8:18CV200
MEMORANDUM
AND ORDER

Respondents.
This matter is before the court on preliminary review of Petitioner Rufus
Blaine Freemont’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 was denied effective assistance of counsel
because trial counsel (1) failed to elicit evidence and
testimony from witnesses to support theory that a third
party fired the shots; (2) failed to object to inadmissible
identification evidence; (3) failed to request cautionary
jury instruction regarding accomplice testimony; (4)
failed to object to and ask for mistrial based on State’s
closing argument regarding Petitioner’s “consciousness
of guilt”; (5) failed to request continuance or create a
deposition outside the presence of the jury when the State
provided an untimely ballistics report; (6) failed to
adduce significant forensic evidence regarding bullet
trajectory; (7) failed to elicit evidence on Petitioner’s
lack of motive; (8) failed to object to testimony by Dan

Marin regarding post-Miranda statements of Samantha
Vawter that were not made available in pretrial
discovery; and (9) failed to make Petitioner aware of his
speedy trial rights.
Claim Two:

Petitioner was denied effective assistance of counsel
because trial and appellate counsel failed to argue for a
sudden quarrel jury instruction when all the evidence
supported a manslaughter conviction.

Claim Three:

Failure to include a sudden quarrel jury instruction
amounts to a violation of Petitioner’s right to Due
Process under the Fourteenth Amendment.

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 the habeas petition regarding
dismissal of his state postconviction appeal due to his attorney’s failure to pay
the appellate filing fee. (See Filing No. 1 at CM/ECF pp. 4, 15.)
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.
By October 15, 2018, 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
2

text: October 15, 2018: 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’ 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.
3

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 October 15, 2018, 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
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, 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
4

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 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 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.

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.

5

F.

The clerk of the court is directed to set a pro se case
management deadline in this case using the following text:
November 13, 2018: 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 29th day of August, 2018.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

6