Titus v. Sabatka-Rine

Filing 12

MEMORANDUM AND ORDER: 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 c ourt. By July 7, 2023, 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: July 7 , 2023: deadline for Respondent to file state court records in support of answer or motion for summary judgment. If Respondent elects to file an answer, the following procedures must be followed by Respondent and Petitioner: By July 7, 2023, R espondent must file all state court records that are relevant to the cognizable claims. No later than 30 days after the relevant state court records are filed, Respondent must file an answer. No later than 30 days after Respondent's brief is filed, Petitioner must file and serve a brief in response. No later than 30 days after Petitioner's brief is filed, Respondent must file and serve a reply brief. The Clerk of the Court is directed to set a pro se case management deadline i n this case using the following text: August 8, 2023: check for Respondent's answer and separate brief.For the reasons stated, Petitioner's Motion for Bail, Filing No. 5, and Motion for Hearing, Filing No. 6, are denied. Petitioner's Motion for Status, Filing No. 11, is granted consistent with this Memorandum and Order. Ordered by Senior Judge Joseph F. Bataillon. (Copy mailed to pro se party)(ADB)

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
SHAWN TITUS,
Petitioner,

8:23CV36

vs.
MEMORANDUM AND ORDER
DIANE SABATKA-RINE,
Respondent.
This matter is before the court on preliminary review of Petitioner Shawn Titus’s
Petition for Writ of Habeas Corpus, Filing No. 1, brought pursuant to 28 U.S.C. § 2254.
Also before the Court are Petitioner’s Motion for Bail, Filing No. 5; Motion for Hearing,
Filing No. 6; and Motion for Status, Filing No. 11.
A. Preliminary Review
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: There was insufficient evidence to support Petitioner’s plea because
the State improperly relied upon Petitioner's uncorroborated out-ofcourt statements to show criminal conduct and injury in violation of
Petitioner’s rights under the First, Fourth, Fifth, and Fourteenth
Amendments, and in violation of Article VI, § 2 of the United States
Constitution.
Claim Two: Petitioner received ineffective assistance of trial and appellate
counsel in violation of the Sixth Amendment because counsel (1)

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failed to assert Petitioner’s First Amendment rights as an affirmative
defense in the trial court and on appeal; (2) induced Petitioner to
enter the plea agreement through improper means; (3) failed to
assert Petitioner’s innocence and object to the trial court’s failure to
resolve the conflict between Petitioner’s claim of innocence and
waiver of trial and assign this as plain error on appeal; (4) failed to
place the plea agreement on the record; (5) failed to object to, and
assign as error on appeal, the trial court’s references during
sentencing to Petitioner’s implied uncharged conduct, inaccurate
information, and Petitioner’s silence; and (6) failed to object to, and
assign as error on appeal, the trial court’s acceptance of the plea.
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.
B. Petitioner’s Other Pending Motions
Petitioner asks this Court to release him on bail pending a final decision in this
matter, Filing No. 5, and requests a hearing, Filing No. 6. Federal district courts have the
inherent power to grant state prisoners bail during the pendency of a federal habeas
corpus proceeding. See Martin v. Solem, 801 F.2d 324, 329-30 (8th Cir. 1986). However,
such power can be exercised only in exceptional cases and where special circumstances
exist. See id. In support of his request for bail, Petitioner essentially summarizes the
grounds for his Petition and argues that bail is warranted because he is likely to succeed

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on his claims. Petitioner has not presented an exceptional or special circumstance
warranting bail pending disposition of the Petition. Further, the Court has reviewed
Petitioner’s arguments in the Motion for Hearing and concludes a hearing on the Motion
for Bail is unnecessary. Accordingly, the Motion for Bail and Motion for Hearing will be
denied.
In his Motion for Status, Petitioner expresses concern over whether his filings have
all been received by the Court because he mailed them in two separate envelopes and
requests a “docket listing.” Filing No. 11. The Court received Petitioner’s petition, Filing
No. 1, Index of Issues Raised, Filing No. 4, Motion for Bail, Fiing No. 5, Motion for Hearing,
Filing No. 6, and 91-page Evidence Index in Support of § 2254, Filing No. 7, on January
27, 2023. On March 21, 2023, the Court received a letter from Petitioner dated March
17, 2023, explaining that he was resending Exhibits 2 – 7 and A – D, which he attached
to the letter and totaled 112 pages. Filing No. 10. Thus, the record appears to be
complete, and Plaintiff’s concerns are addressed by this Memorandum and Order.
Accordingly, the Motion for Status is granted consistent with this Memorandum and Order.
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 July 7, 2023, 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: July 7, 2023: deadline

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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:
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

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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.

4.

If Respondent elects to file an answer, the following procedures must be

followed by Respondent and Petitioner:
A.

By July 7, 2023, 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

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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, nonretroactivity, 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 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.

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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: August 8, 2023: 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.
6.

For the reasons stated, Petitioner’s Motion for Bail, Filing No. 5, and Motion

for Hearing, Filing No. 6, are denied. Petitioner’s Motion for Status, Filing No. 11, is
granted consistent with this Memorandum and Order.

Dated this 22nd day of May, 2023.
BY THE COURT:

Joseph F. Bataillon
Senior United States District Judge

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