Parnell v. State of Nebraska

Filing 23

MEMORANDUM AND ORDER - Petitioner's motion to amend his habeas petition (filing 22 ) is granted. Counsel for Petitioner shall promptly file the amended petition. See NECivR 15.1(c). By July 6, 2021, Respondent shall file an answer to the amende d petition along with a separate brief and any additional relevant state court records, if necessary. The clerk of the court is directed to set a pro se case management deadline in this case using the following text: July 6, 2021: deadline for Respondent to file answer and separate brief. After Respondent files an answer and brief, Petitioner shall have 30 days to file and serve a brief in response. Respondent shall have 30 days after Petitioner's brief is filed to 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. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party)(LKO)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
TRACY N. PARNELL,
Petitioner,

8:20CV352

vs.
MEMORANDUM AND ORDER
SCOTT R. FRAKES,
Respondent.

This matter is before the court on the motion of Petitioner, by and through
his counsel, to file an amended petition for a writ of habeas corpus. (Filing 22.) In
his motion to amend and the attached proposed amended petition, counsel for
Petitioner seeks to clarify the constitutional grounds for relief and citations to the
existing record. For good cause shown, the court will allow the amendments. The
petition, as amended, asserts two claims:
Claim One:

The Nebraska district court and Nebraska Supreme Court
have denied Petitioner an evidentiary hearing and granted
a new trial on the ground that the State withheld
exculpatory evidence which was discovered by accident
in violation of the Due Process Clause of the Fourteenth
Amendment to the United States Constitution.

Claim Two:

The Nebraska district court and Nebraska Supreme Court
have denied petitioner an evidentiary hearing on the issue
of ineffective assistance of trial counsel in failing to call
O’Kelly as a witness, although O’Kelly had not yet
performed the essential “drive” test, among others, at the
time of the trial and grant relief in the form of a new trial

in violation of the Sixth and Fourteenth Amendments to
the United States Constitution.
(Filing 22 at CM/ECF p. 12.)
In light of the amendments, the progression of this matter is revised as set
forth below.
IT IS THEREFORE ORDERED that:
1.
Petitioner’s motion to amend his habeas petition (filing 22) is granted.
Counsel for Petitioner shall promptly file the amended petition. See NECivR
15.1(c).
2.
By July 6, 2021, Respondent shall file an answer to the amended
petition along with a separate brief and any additional relevant state court records,
if necessary.1 The clerk of the court is directed to set a pro se case management
deadline in this case using the following text: July 6, 2021: deadline for
Respondent to file answer and separate brief.
3.
After Respondent files an answer and brief, Petitioner shall have 30
days to file and serve a brief in response.
4.
Respondent shall have 30 days after Petitioner’s brief is filed to 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.

1

The court understands that Respondents have filed all relevant state court records
in this matter. (Filing 14; Filing 17 at CM/ECF p. 2, ¶ 9.)

2

Dated this 4th day of June, 2021.
BY THE COURT:

Richard G. Kopf
Senior United States District Judge

3