Matthies v. Houston
Filing
8
MEMORANDUM AND ORDER - IT IS ORDERED: Upon initial review of the petition (Filing No. 1 ), the Court preliminarily determines that petitioner's claims, as set forth in this memorandum and order, are potentially cognizable in federal court. T he clerk of the court is directed to mail copies of this memorandum and order and the petition to respondent and the Nebraska Attorney General by regular first-class mail. By August 20, 2012, respondent shall file a motion for summary judgment or st ate 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: August 20, 2012: deadline for respondent to file state court records in support of answer o r 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: September 19, 2012, 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 Senior Judge Lyle E. Strom. (Copy mailed to pro se party and as directed)(TCL )
IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEBRASKA
GREGORY M. MATTHIES,
)
)
Petitioner,
)
)
v.
)
)
ROBERT HOUSTON,
)
)
Respondent.
)
______________________________)
4:12CV3069
MEMORANDUM AND ORDER
The Court has conducted an initial review of the
Petition for Writ of Habeas Corpus (Filing No. 1) to determine
whether the claims made by petitioner are, when liberally
construed, potentially cognizable in federal court.
Petitioner
has made one claim.
The claim asserted by petitioner is: petitioner was
denied due process and equal protection of the law in violation
of the Fourteenth Amendment because the Nebraska Board of Parole
(1) ignored the sentencing court order which made petitioner
eligible for parole in March 2010; and (2) has repeatedly and
arbitrarily denied petitioner parole without any good cause or
reasonable justification.
Liberally construed, the Court preliminarily decides
that petitioner’s claim is potentially cognizable in federal
court.
However, the Court cautions that no determination has
been made regarding the merits of these claims or any defenses
thereto or whether there are procedural bars that will prevent
petitioner from obtaining the relief sought.
IT IS ORDERED:
1.
Upon initial review of the petition (Filing No.
1), the Court preliminarily determines that petitioner’s claims,
as set forth in this memorandum and order, are potentially
cognizable in federal court.
2.
The clerk of the court is directed to mail copies
of this memorandum and order and the petition to respondent and
the Nebraska Attorney General by regular first-class mail.
3.
By August 20, 2012, 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:
August 20, 2012:
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.
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.”
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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 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.
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.
5.
If respondent elects to file an answer, the
following procedures shall be followed by respondent and
petitioner:
A.
By August 20, 2012, respondent shall file all
state court records which are relevant to the
cognizable claims. See, e.g., Rule 5(c)-(d) of
-3-
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 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 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
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petition are therefore fully submitted for
decision.
F.
6.
No discovery shall be undertaken without leave of
the Court.
The clerk of the court is directed to set a pro se
case management deadline in this case using the
following text: September 19, 2012, check for
respondent to file answer and separate brief.
See Rule 6 of the Rules Governing Section 2254 Cases
in the United States District Courts.
DATED this 5th day of July, 2012.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court
*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
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hyperlink. Thus, the fact that a hyperlink ceases to work or
directs the user to some other site does not affect the opinion
of the Court.
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