Jacob v. Houston

Filing 222

MEMORANDUM AND ORDER - Petitioner's motion to order the Clerk of the Court or the Respondent to provide petitioner with a page index of exhibits from Schlichtman v. Jacob is denied as moot. Petitioner may include a renewed motion to certif y questions to the Nebraska Supreme Court with his supplemental brief in the same time frame allowed under the Court's Final Progression Order (Filing No. 220 ). The Court reserves ruling on petitioner's request for an evidentiary hearing until all briefing is submitted in accordance with the Court's Final Progression Order. Nothing in this order shall be construed as altering or amending the time frame set forth in the Court's Final Progression Order. Ordered by Senior Judge Lyle E. Strom. (Copy mailed to pro se party)(GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
STEVEN M. JACOB,

)
)
Petitioner,
)
)
v.
)
)
SCOTT FRAKES,
)
)
Respondent.
)
______________________________)

4:10CV3073

MEMORANDUM AND ORDER

This matter is before the Court on the motion of Steven
M. Jacob (“petitioner”) (Filing No. 221) to clarify the Court’s
February 27, 2017, Final Progression Order (Filing No. 220).

In

petitioner’s motion, he requests: (1) an order directing the
Clerk of the Court or the Respondent to provide petitioner with a
page index of exhibits from Schlichtman v. Jacob, contained in
Filing No. 216 to the most recent filing; (2) clarification of
when to make a written request for certifying questions to the
Nebraska Supreme Court; and (3) an evidentiary hearing with
regard to medical causation of death and other claims.

After

review of petitioner’s motion, the Court finds as follows.
BACKGROUND
On April 23, 2010, petitioner filed his habeas petition
pursuant to 28 U.S.C. § 2254 (Filing No. 1).

Through repeated

motions for extension of time, clarification, and miscellaneous
motion practice, this case is ready for final disposition.

Accordingly, on February 27, 2017, the Court issued an order for
the final progression of the case, providing each party with the
opportunity to submit supplemental briefs before the case is
deemed submitted (Filing No. 220).

On March 8, 2017, petitioner

filed this motion seeking clarification of the Court’s Final
Progression Order.
DISCUSSION
First, petitioner requests the Court direct the Clerk
of the Court (“Clerk”) or Scott Frakes (“Respondent”) to provide
petitioner with a page index of the numbered exhibits from
Schlichtman v. Jacob, where the exhibits are located in the
record (Filing No. 221 at 1).

On January 13, 2017, the Clerk

received a letter from petitioner requesting a copy of the docket
sheet from Filing No. 191 to the most recent filing (Filing No.
218 at 1).

The Clerk delivered a response to petitioner at the

Nebraska State Penitentiary “by other means” (Filing No. 218
receipt).

The Clerk’s response stated, “AUDITING REQUIRES THAT

WE RECEIVE PAYMENT BEFORE SHIPMENT OF COPIES,” and indicated a
total cost of $2.00 for the four pages that petitioner requested
(Id. at 1).
A prisoner proceeding in forma pauperis is not entitled
to receive copies of documents without payment.

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28 U.S.C.

§ 1915; see also McNeil v. City of Omaha, No. 8:07CV143, 2008 WL
312715, at *3 (Jan. 30, 2008).

As of the date of this memorandum

and order, petitioner has not submitted the $2.00 payment for the
copies of the docket sheet he requested.

These documents are

available to petitioner upon payment of the requisite fee.
Accordingly, petitioner’s motion for an order directing the Clerk
or respondent to provide him with a page index of the number of
exhibits will be denied as moot.
Next, petitioner seeks clarification as to when he
should assert his renewed motion to certify a question to the
Nebraska Supreme Court.

It appears from the present motion that

petitioner wishes to renew his original motion to certify
questions to the Nebraska Supreme Court as well as asserting a
new question regarding the applicability of Johnson v. United
States, 135 S. Ct. 2551, 192 L. Ed. 2d 569 (2015) to Neb. Rev.
Stat. § 28-304 (Filing No. 221 at 2).
with Filing No. 221 at 2.

Compare Filing No. 183

Petitioner’s present request is not a

motion to certify questions to the Nebraska Supreme Court, rather
just clarification on when the Court wishes petitioner to make
that motion.
This case has gone through extensive motion practice to
prepare it for disposition.

The petitioner may include his

motion to certify questions to the Nebraska Supreme Court with
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his supplemental brief.

The Court will consider the voluminous

record after April 24, 2017, in accordance with the Court’s Final
Progression Order (Filing No. 220).

The Court will rule on any

pending motions with a complete record at that time.
Finally, petitioner’s amended petition requests “an
evidentiary hearing to prove the factual allegations contained in
this Petition.”

(Filing No. 136 at 183).

The Court reserves

ruling on petitioner’s request for an evidentiary hearing until
after all briefing is submitted in compliance with the Court’s
Final Progression Order (Filing No. 220).
IT IS ORDERED:
1) Petitioner’s motion to order the Clerk of the Court
or the Respondent to provide petitioner with a page index of
exhibits from Schlichtman v. Jacob is denied as moot.
2) Petitioner may include a renewed motion to certify
questions to the Nebraska Supreme Court with his supplemental
brief in the same time frame allowed under the Court’s Final
Progression Order (Filing No. 220).
3) The Court reserves ruling on petitioner’s request
for an evidentiary hearing until all briefing is submitted in
accordance with the Court’s Final Progression Order.

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4) Nothing in this order shall be construed as altering
or amending the time frame set forth in the Court’s Final
Progression Order.
DATED this 13th day of March, 2017.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

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