Bush v. Thurber, et al.

Filing 12

MEMORANDUM AND ORDER regarding initial review of Petitions. Upon initial review of the Petition and Amended Petitions for Writ of Habeas Corpus (filing nos. 1 , 3 , and 8 ), the court preliminarily determines that both of Petitioner's claims are potentially cognizable in federal court. The Clerk of the court is directed to mail copies of this Memorandum and Order and Petitioner's Petition for Writ of Habeas Corpus (filing no. 1 ) to Respondent and the Nebraska Attorney General by regular first-class mail. By July 6, 2009, Respondent shall 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 followi ng text: July 6, 2009: deadline for Respondent 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: August 5, 2009: check for Respondent to file answer and separate brief. Ordered by Judge Richard G. Kopf. (Copy mailed to pro se party, Respondents and NE Attorney General)(LKH) Modified on 5/22/2009 to correct typing error (LKH).

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA CHARLIE B. BUSH JR., Petitioner, v. MICHAEL THURBER, et al. Respondents. ) ) ) ) ) ) ) ) ) 4:09CV3076 MEMORANDUM AND ORDER Petitioner filed a Petition for Writ of Habeas Corpus (filing no. 1), and two Amended Petitions for Writ of Habeas Corpus (filing nos. 3 and 8). The court has conducted an initial review of the petitions to determine whether the claims made by Petitioner are, when liberally construed, potentially cognizable in federal court. The court considered Petitioner's amended petitions as supplemental to his original petition. See NECivR 15.1(b). Petitioner makes two claims. Condensed and summarized for clarity, the claims asserted by Petitioner are: Claim One: Petitioner is being denied due process of law in violation of the Fourteenth Amendment because he is a pauper being held in debtor's prison for nonpayment of child support. Petitioner is being denied due process and equal protection of the laws in violation of the Fourteenth A me n d me n t because the punishment for nonpayment of child support for paupers is imprisonment while the punishment for nonpaupers is a fine. Claim Two: Liberally construed, the court preliminarily decides that both of Petitioner's claims are potentially cognizable in federal court. However, the court cautions 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 Petition and Amended Petitions for Writ of Habeas Corpus (filing nos. 1, 3, and 8), the court preliminarily determines that both of Petitioner's claims are potentially cognizable in federal court. 2. The Clerk of the court is directed to mail copies of this Memorandum and Order and Petitioner's Petition for Writ of Habeas Corpus (filing no. 1) to Respondent and the Nebraska Attorney General by regular first-class mail. 3. By July 6, 2009, Respondent shall 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 6, 2009: deadline for Respondent to file state court records in support of answer or motion for summary judgment. 4. If Respondent elects to file a motion for summary judgment, the following procedures shall be followed by Respondent and Petitioner: A. The motion for summary judgment shall be accompanied by a separate brief, submitted at the time of the filing of the motion. The motion for summary judgment shall be supported by such state court records as are necessary to support the motion. Those 2 B. records shall 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 shall be served upon Petitioner except that Respondent is only required to provide Petitioner with a copy of the specific pages of the record which are cited in Respondent's brief. In the event that the designation of state court records is deemed insufficient by Petitioner, Petitioner may file a motion with the court requesting additional documents. Such motion shall set forth the documents requested and the reasons the documents are relevant to the cognizable claims. No later than 30 days following the filing of the motion for summary judgment, Petitioner shall file and serve a brief in opposition to the motion for summary judgment. Petitioner shall submit no other documents unless directed to do so by the court. No later than 30 days after the filing Petitioner's brief, Respondent shall 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. If the motion for summary judgment is denied, Respondent shall file an answer, a designation and a brief that complies with terms of this order. (See the following paragraph.) The documents shall be filed no later than 30 days after the denial of the motion for 3 D. E. F. summary judgment. Respondent is warned that the failure to file an answer, a designation and a brief in a timely fashion may result in the imposition of sanctions, including the release of Petitioner. 5. If Respondent elects to file an answer, the following procedures shall be followed by Respondent and Petitioner: A. By July 6, 2009, Respondent shall file all state court records which 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 shall be contained in a separate filing entitled: "Designation of State Court Records In Support of Answer." No later than 30 days after the filing of the relevant state court records, Respondent shall file an answer. The answer shall be accompanied by a separate brief, submitted at the time of the filing of the answer. Both the answer and brief shall 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 C ou r ts . Copies of the answer, the designation, and Respondent's brief shall be served upon Petitioner at the time they are filed with the 4 B. C. court except that Respondent is only required to provide Petitioner with a copy of the specific pages of the designated record which are cited in Respondent's brief. In the event that the designation of state court records is deemed insufficient by Petitioner, Petitioner may file a motion with the court requesting additional documents. Such motion shall 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 Respondent's brief, Petitioner shall file and serve a brief in response. Petitioner shall submit no other documents unless directed to do so by the court. No later than 30 days after the filing of Petitioner's brief, Respondent shall 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. The Clerk of the court is directed to set a pro se case management deadline in this case using the following text: August 5, 2009: check for Respondent to file answer and separate brief. E. F. 6. 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. May 22, 2009. BY THE COURT: s/Richard G. Kopf United States District Judge 5

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