Opinion
8:23CV8
05-17-2023
DAEJERRON L. VALENTINE, Petitioner, v. CRAIG GABLE, Warden of Tecumseh State Correctional Institution; and DOUGLAS PETERSON, Attorney General; Respondents.
MEMORANDUM AND ORDER
Joseph F. Bataillon, Senior United States District Judge
This matter is before the court on preliminary review of Petitioner Daejerron L. Valentine'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: The denial of Petitioner's motion to suppress evidence at his original trial violated Petitioner's Fourth and Fourteenth Amendment rights because the traffic stop was not supported by reasonable suspicion and law enforcement lacked probable cause to search the entire vehicle.
Claim Two: The state courts denied Petitioner of his Fifth Amendment right to due process of law and Sixth Amendment right to be informed of the nature of the accusations against him by erroneously interpreting the Nebraska statute governing possession of a deadly weapon by a prohibited person, Neb. Rev. Stat. § 28-1206.
Claim Three: The trial court erred in refusing to adopt Petitioner's proposed jury instructions in violation of his rights under the Fourteenth Amendment.
Claim Four: Petitioner received ineffective assistance of trial and appellate counsel in violation of the Sixth Amendment because counsel (1) failed to object to introduction of video evidence that was not calibrated, as required by Nebraska law; (2) failed to object to the State's stipulation of Petitioner's prior convictions; (3) failed to object to erroneous jury instructions; (4) failed to interview or call an expert to refute the State's evidence that Petitioner was a major contributor to the DNA found on a firearm; and (5) failed to raise the issue of ineffective assistance of trial counsel in Petitioner's collateral attack of his conviction and sentence in post-conviction proceedings.
Claim Five: Petitioner's conviction was not supported by sufficient evidence to support a jury verdict of guilt beyond a reasonable doubt.
Claim Six: The trial court erred in concluding Petitioner was procedurally barred from raising claims in post-conviction proceedings, and the Nebraska Court of Appeals erred in affirming that decision.
With the exception of Claim Six, 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. Claim Six is not cognizable in a federal habeas action as it is based on errors in the state postconviction proceedings. Errors during state postconviction review are not cognizable in a federal habeas corpus action. See Bell-Bey v. Roper, 499 F.3d 752, 756 (8th Cir. 2007) (“Because the Constitution does not guarantee the existence of state post-conviction proceedings, an infirmity in a state postconviction proceeding does not raise a constitutional issue cognizable in a federal habeas application.” (cleaned up)); Jenkins v. Houston, 4:05CV3099, 2006 WL 126632 (D. Neb. 2006) (collecting cases). Claim Six is dismissed.
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 One through Five, as they are set forth in this Memorandum and Order, are potentially cognizable in federal court. Claim Six is dismissed.
2. By July 5, 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 5, 2023: 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:
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.
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 5, 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 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.
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 4, 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.