Jacob v. Houston

Filing 137

MEMORANDUM AND ORDER - By December 8, 2014, 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 fol lowing text: December 8, 2014: 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 shall be followed by Respondent and Petitioner. The Clerk of the court is directed to set a pro se case management deadline in this case using the following text: January 8, 2015: check for Respondent to file 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 Judge Joseph F. Bataillon. (Copy mailed to pro se party)(GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
STEVEN M. JACOB,
Petitioner,
v.
ROBERT HOUSTON,
Respondent.

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4:10CV3073

MEMORANDUM
AND ORDER

Petitioner Steven M. Jacob filed a Petition for Writ of Habeas Corpus in this
court on April 23, 2010. (Filing No. 1.) When Jacob filed his petition, he had not yet
exhausted all of his claims in the Nebraska state courts. On April 17, 2014, Jacob
advised the court that he has now exhausted his claims in the Nebraska state courts
and this matter may proceed in this court. Jacob asked the court for leave to file an
amended petition for writ of habeas corpus, and the court granted his request. (See
Filing No. 129.) Jacob filed an Amended Petition for Writ of Habeas Corpus (Filing
No. 136) on August 4, 2014. In order to progress this case to final resolution,
IT IS ORDERED:
1.
By December 8, 2014, 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: December 8, 2014: deadline for Respondent to file state court records in support
of answer or motion for summary judgment.
2.
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.

B.

The motion for summary judgment shall be supported by such
state court records as are necessary to support the motion. Those
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.

D.

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.

E.

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 motion is therefore fully submitted for decision.
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F.

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
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.

3.
If Respondent elects to file an answer, the following procedures shall be
followed by Respondent and Petitioner:
A.

By December 8, 2014, Respondent shall 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 shall be contained in a
separate filing entitled: “Designation of State Court Records in
Support of Answer.”

B.

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

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Governing Section 2254 Cases in the United States District
Courts.
C.

Copies of the answer, the designation, and Respondent’s brief
shall be served upon 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 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.

E.

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.

F.

The Clerk of the court is directed to set a pro se case management
deadline in this case using the following text: January 8, 2015:
check for Respondent to file answer and separate brief.

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4.
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 8th day of October, 2014.
BY THE COURT:

s/ Joseph F. Bataillon
Senior United States District Judge

*This opinion may contain hyperlinks to other documents or Web sites. The U.S. District Court for the District
of Nebraska does not endorse, recommend, approve, or guarantee any third parties or the services or products they
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