Banks v. Bakewell et al

Filing 55

MEMORANDUM AND ORDER - IT IS ORDERED that: By November 30, 2015, Respondent must file a motion for summary judgment or state court records in support of an answer. The clerk's office is directed to set a pro se case management deadline in thi s case using the following text: November 30, 2015: deadline for Respondent to file state court records in support of answer or motion for summary judgment. The clerk's office is directed to set a pro se case management deadline in this case u sing the following text: December 29, 2015: check for Respondent's 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 Senior Judge Joseph F. Bataillon. (Copy mailed to pro se party)(TCL )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ANTONIO BANKS,
Petitioner,
v.
MICHAEL L. KENNEY, Director of
the Department of Corrections,
Respondent.

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4:10CV3162

MEMORANDUM
AND ORDER

Petitioner Antonio Banks filed his Amended Petition for Writ of Habeas Corpus
(Filing No. 54) on August 12, 2015. In order to progress this case to final resolution,
IT IS ORDERED that:
1.
By November 30, 2015, Respondent must file a motion for summary
judgment or state court records in support of an answer. The clerk’s office is directed
to set a pro se case management deadline in this case using the following text:
November 30, 2015: 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 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 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 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
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in the imposition of sanctions, including Petitioner’s release.
3.
If Respondent elects to file an answer, the following procedures must be
followed by Respondent and Petitioner:
A.

By November 30, 2015, 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,
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 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 brief. In the event that the designation of state
court records is deemed insufficient by Petitioner, Petitioner may
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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’s office is directed to set a pro se case management
deadline in this case using the following text: December 29, 2015:
check for Respondent’s answer and separate brief.

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 15th day of October, 2015.
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 provide
on their Web sites. Likewise, the court has no agreements with any of these third parties or their Web sites. The court
accepts no responsibility for the availability or functionality of any hyperlink. Thus, the fact that a hyperlink ceases to work
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