Zimmerman v. State of Nebraska

Filing 15

MEMORANDUM AND ORDER -Upon initial review of the Amended Petition (Filing No. 14 ), the court preliminarily determines that Claims One, Two, Three, and Four, as set forth in this Memorandum and Order, are potentially cognizable in federal court. The clerks office is directed to mail copies of this Memorandum and Order and the Amended Petition to Respondents and the Nebraska Attorney General by regular first-class mail. By October 10, 2013, Respondent shall file a motion for summary judgmentor state court records in support of an answer. If the Respondent elects to file a motion for summary judgment, the procedures set forth in the order shall be followed by Respondent and Petitioner. If the Respondent elects to file an answer, the fo llowing procedures set forth within the order will be folled by Respondent and Petitioner. ***Pro Se Case Management Deadlines: ( Pro Se Case Management Deadline set for 10/10/2013: deadline for Respondent to file state court records in support of answer or motion for summary judgment) (Pro se Case Management Deadline set for 11/11/2013:check for Respondent 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
CHRISTOPHER ZIMMERMAN,
Petitioner,
v.
STATE OF NEBRASKA,
Respondent.

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CASE NO. 4:12CV3246

MEMORANDUM
AND ORDER

The court has conducted an initial review of the Amended Petition for Writ of
Habeas Corpus (Filing No. 14) to determine whether Petitioner’s claims are, when liberally
construed, potentially cognizable in federal court. Condensed and summarized, Petitioner
has raised four claims:
Claim One:

Petitioner received an excessive sentence in violation of the
Fifth and Fourteenth Amendments. (Id. at CM/ECF p. 5.)

Claim Two:

Petitioner was convicted in violation of his right to due process
because there was insufficient evidence to convict him of
robbery. (Id. at CM/ECF p. 7.)

Claim Three:

Petitioner was convicted in violation of his right to due process
because the prosecution was “prejudice[d]” by Petitioner’s
father. (Id. at CM/ECF p. 8.)

Claim Four:

Petitioner was convicted in violation of his right to due process
because there was insufficient evidence to convict him of false
imprisonment. (Id. at CM/ECF p. 10.)

Liberally construed, the court preliminarily decides that Petitioner’s four 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 Amended Petition (Filing No. 14), the court
preliminarily determines that Claims One, Two, Three, and Four, as set forth
in this Memorandum and Order, are potentially cognizable in federal court;

2.

The clerk’s office is directed to mail copies of this Memorandum and Order
and the Amended Petition to Respondents and the Nebraska Attorney
General by regular first-class mail;

3.

By October 10, 2013, Respondent shall 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: October 10, 2013: 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.”

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 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, 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
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stating that he will not file a reply brief and that the motion is therefore
fully submitted for decision.
F.

5.

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;

If Respondent elects to file an answer, the following procedures shall be
followed by Respondent and Petitioner:
A.

By October 10, 2013, Respondent 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, 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 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.

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D.

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
petition are therefore fully submitted for decision.

F.

6.

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.

The Clerk of the court is directed to set a pro se case management
deadline in this case using the following text: November 11, 2013:
check for Respondent to file answer and separate brief; and

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 26th day of August, 2013.
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.
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