Zlomke v. Houston

Filing 6

MEMORANDUM AND ORDER - Upon initial review of the Petition for Writ of Habeas Corpus 1 , Zlomke's claim as set forth in this Memorandum and Order Regarding Petition for Writ of Habeas Corpus, is potentially cognizable in federal court. The cler k of the court is directed to mail copies of this memorandum and order and the Petition for Writ of Habeas Corpus to the respondent and the Nebraska Attorney General by regular first-class mail. The clerk of the court is directed to set a pro se case management deadline for 3/30/12: deadline for the respondent to file state court records in support of answer or motion for summary judgment. The clerk is directed to set a Pro Se Case Management Deadline for 4/30/2012: check for the respondent to file answer and separate brief. Ordered by Senior Judge Warren K. Urbom. (Copy mailed to pro se party and as directed) (JSF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
RICHARD GALE ZLOMKE,
Petitioner,
v.
ROBERT HOUSTON,
Respondent.

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4:12CV3018

MEMORANDUM
AND ORDER REGARDING
PETITION FOR WRIT OF
HABEAS CORPUS

An initial review has been conducted of the Petition for Writ of Habeas Corpus
(filing no. 1) to determine whether the claims made by the petitioner, Richard Gale
Zlomke (Zlomke) are, when liberally construed, potentially cognizable in federal
court. Zlomke has made one claim.
Condensed and summarized for clarity, the claim asserted is: Zlomke was
denied due process of law in violation of the Fourteenth Amendment because the
Nebraska Board of Parole has repeatedly and arbitrarily failed to consider his “parole
eligibility date” and instead refuses to release him until closer to his “tentative release
date,” despite Zlomke’s efforts at rehabilitation.
Liberally construed, I preliminarily decide that Zlomke’s claim is potentially
cognizable in federal court. However, I caution that no determination has been made
regarding the merits of this claim or any defenses thereto or whether there are
procedural bars that will prevent Zlomke from obtaining the relief sought.
IT IS THEREFORE ORDERED that:
1.
Upon initial review of the Petition for Writ of Habeas Corpus (filing no.
1), I preliminarily determine that Zlomke’s claim as set forth in this Memorandum
and Order Regarding Petition for Writ of Habeas Corpus, is potentially cognizable

in federal court.
2.
The clerk of the court is directed to mail copies of this memorandum and
order and the Petition for Writ of Habeas Corpus to the respondent and the Nebraska
Attorney General by regular first-class mail.
3.
By March 30, 2012, the 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: March 30, 2012: deadline for the respondent to file state court records in
support of answer or motion for summary judgment.
4.
If the respondent elects to file a motion for summary judgment, the
following procedures shall be followed by the respondent and Zlomke:
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 the respondent’s brief shall be
served upon Zlomke except that the respondent is only required
to provide Zlomke with a copy of the specific pages of the record
which are cited in the respondent’s brief. In the event that the
designation of state court records is deemed insufficient by
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Zlomke, he 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, Zlomke shall file and serve a brief in
opposition to the motion for summary judgment. Zlomke shall
submit no other documents unless directed to do so by the court.

E.

No later than 30 days after the filing of Zlomke’s brief, the
respondent shall file and serve a reply brief. In the event that the
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, the 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. The 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 Zlomke.

5.
If the respondent elects to file an answer, the following procedures shall
be followed by the respondent and Zlomke:
A.

By March 30, 2012, the respondent shall file all state court
records which are relevant to the cognizable claims. See, e.g.,
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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, the 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 Zlomke’s allegations that have survived initial review,
and whether the 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 the respondent’s brief
shall be served upon Zlomke at the time they are filed with the
court except that the respondent is only required to provide
Zlomke with a copy of the specific pages of the designated record
which are cited in the respondent’s brief. In the event that the
designation of state court records is deemed insufficient by
Zlomke, he 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 respondent’s
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brief, Zlomke shall file and serve a brief in response. Zlomke
shall submit no other documents unless directed to do so by the
court.
E.

No later than 30 days after the filing of Zlomke’s brief, the
respondent shall file and serve a reply brief. In the event that the
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: April 30, 2012:
check for the respondent to file answer and separate brief.

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.
Dated February 14, 2012.
BY THE COURT

s/ Warren K. Urbom
United States Senior District Judge

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