Rush v. Thurber

Filing 5

MEMORANDUM AND ORDER - Upon initial review of the Petition (Filing No. 1 ), the court preliminarily decides that Petitioner's claim is potentially cognizable in federal court. The Clerk of the court is directed to mail copies of this Memo randum and Order and the Petition (Filing No. 1 ) to Respondents and the Nebraska Attorney General by regular first-class mail. By March 29, 2013, 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 29, 2013: deadline for Respondent to file state court records in support of answer or motion for summary judgment. If Respond ent elects to file an answer, the procedures shall be followed by Respondent and Petitioner. The Clerk of the court is directed to set a pro se case management deadline in this case using the following text: April 29, 2013: check for Respondent to file answer and separate brief. No discovery shall be undertaken without leave of the court. Ordered by Chief Judge Laurie Smith Camp. (Copy mailed to pro se party and as directed to respondents with a copy of the petition)(GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
CLIFFORD RUSH,
Petitioner,
v.
MICHAEL THURBER, Director,
Respondent.

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CASE NO. 4:12CV3253

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. Liberally construed, Petitioner asserts
two claims.
Claim One:

Petitioner was denied the effective assistance of trial counsel
in violation of the Sixth and Fourteenth Amendments because
his trial counsel failed to appeal his conviction. (Filing No. 1 at
CM/ECF pp. 1-16)

Claim Two:

Petitioner was denied due process in violation of the
Fourteenth Amendment because he was denied the right to
appeal. (Id.)

The court preliminarily decides that Petitioner’s claims, as set forth in this
Memorandum and Order, are potentially cognizable in federal court. However, the court
cautions Petitioner that no determination has been made regarding the merits of his 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
decides that Petitioner’s claim 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 (Filing No. 1) to Respondents and the Nebraska
Attorney General by regular first-class mail;

3.

By March 29, 2013, 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 29, 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
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
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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 March 29, 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.

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

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stating that he will not file a reply brief and that the merits of the
petition are therefore fully submitted for decision.
F.

6.

The Clerk of the court is directed to set a pro se case management
deadline in this case using the following text: April 29, 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 13th day of February, 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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