Ellis v. Houston et al
Filing
7
MEMORANDUM AND ORDER -Upon initial review of the Petition (Filing No. 1 ), the court preliminarily determines that Petitioners claims, as set forth in this Memorandum and Order, are potentially cognizable in federal court. The Clerk of the court is directed to mail copies of this Memorandum and Order and the Petition to Respondents and the Nebraska Attorney General by regular first-class mail. By December 14, 2012, Respondents shall file a motion for summary judgment or state court re cords in support of an answer. ***Pro Se Case Management Deadlines: ( Pro Se Case Management Deadline set for 12/14/2012: deadline for Respondents to file state court records in support of answer or motion for summary judgment). The Clerk of the c ourt is directed to set a pro se case management deadline in this case using the following text: January 14, 2013: check for Respondents to file answer and separate brief. Ordered by Chief Judge Laurie Smith Camp. (Copy mailed to pro se party and as directed)(MKR)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
GLENN E. ELLIS,
)
)
Petitioner,
)
)
v.
)
)
ROBERT P. HOUSTON, Director
)
Nebraska Department of Correctional )
Service, FRED BRITTEN, and JON
)
BRUNING, Atty. Gen.,
)
)
Respondents.
)
CASE NO. 4:12CV3206
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 three claims.
Condensed and summarized for clarity, the claims asserted by Petitioner are:
Claim One:
Petitioner was denied due process of law and the
effective assistance of counsel in violation of the Sixth
and Fourteenth Amendments because his trial and
appellate counsel failed to (1) effectively investigate and
gather evidence for Petitioner’s case; (2) call witnesses
and properly cross-examine witnesses; (3) make timely
objections; (4) propose proper jury instructions including
an instruction defining the terms in the amended
information; (5) preserve issues for appeal; (6) advise
Petitioner of his rights under the amended information;
(7) file a timely motion in opposition to the prosecution’s
amended information; (8) raise issues on appeal,
including counsel’s own ineffective assistance; and (9)
advise Petitioner during critical stages of his appeal.
Claim Two:
Petitioner was denied the right to an impartial jury in
violation of the Fifth, Sixth, and Fourteenth
Amendments because (1) Petitioner was not initially
allowed to be part of an ex parte communication
between the court, the prosecution, trial counsel, and a
juror; (2) trial counsel induced Petitioner to excuse a
juror without cause and without informing Petitioner of
the consequences of that action; (3) the jury instruction
did not distinguish between “serious bodily injury” and
“serious bodily harm;” (4) during deliberations, the jury
submitted a note to the trial judge asking the meaning
of “serious bodily injury” and “serious bodily harm,” and
the court incorrectly instructed the jury that the terms
were synonymous; (5) the trial court rejected
Petitioner’s request for a lesser offense instruction to
the jury; and (6) one of the jurors waited until after
submission of the verdict to express his/her concern of
retaliation with regard to one of the State’s witnesses,
Michael Bully.
Claim Three:
Petitioner was denied due process of law in violation of
the Fifth and Fourteenth Amendments because (1) the
State amended its information to include a habitual
criminal allegation for the purpose of inducing Petitioner
to accept a plea bargain; and (2) the habitual criminal
allegation was made without sufficient proof that
Petitioner was the same person who had been
convicted of those crimes.
Liberally construed, the court preliminarily decides that all of Petitioner’s claims are
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 THEREFORE ORDERED that:
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 Respondents and the Nebraska Attorney General
by regular first-class mail;
3.
By December 14, 2012, Respondents 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 14, 2012: deadline for Respondents to
file state court records in support of answer or motion for summary judgment;
2
4.
If Respondents elect to file a motion for summary judgment, the following
procedures shall be followed by Respondents and Petitioner:
A.
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 Respondents’ brief shall be served
upon Petitioner except that Respondents are only required to provide
Petitioner with a copy of the specific pages of the record which are
cited in Respondents’ 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, Respondents
shall file and serve a reply brief. In the event that Respondents elect
not to file a reply brief, they should inform the court by filing a notice
stating that they will not file a reply brief and that the motion is
therefore fully submitted for decision.
F.
5.
The motion for summary judgment shall be accompanied by a
separate brief, submitted at the time of the filing of the motion.
If the motion for summary judgment is denied, Respondents 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. Respondents are 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;
and
If Respondents elect to file an answer, the following procedures shall be
followed by Respondents and Petitioner:
3
A.
By December 14, 2012, Respondents shall file all state court records
which 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, Respondents 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 Respondents’ brief shall
be served upon Petitioner at the time they are filed with the court
except that Respondents are only required to provide Petitioner with
a copy of the specific pages of the designated record which are cited
in Respondents’ 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 Respondents’ 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, Respondents
shall file and serve a reply brief. In the event that Respondents elect
not to file a reply brief, they should inform the court by filing a notice
stating that they 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 14, 2013:
check for Respondents to file answer and separate brief.
4
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 this 31st day of October, 2012.
BY THE COURT:
s/Laurie Smith Camp
Chief 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 or directs the user to some other site does
not affect the opinion of the court.
5
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?