Gibbs v. Houston
Filing
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MEMORANDUM AND ORDER - Upon initial review of the habeas corpus petition (filing no. 1 ), the court preliminarily determines that Petitioner's claim is potentially cognizable in federal court. The Clerk of the court is directed to mail copie s of this memorandum and order and the section 2254 petition to Respondent and the Nebraska Attorney General by regular first-class mail. By July 19, 2013, Respondent shall file a motion for summary judgment or state court records in support of an answer. If Respondent elects to file a motion for summary judgment the procedures set forth in the order shall be followed. If Respondent elects to file a answer the procedures set forth in the order shall be followed. The Clerk of the court is directed to set a pro se case management deadline in this case using the following text: August 19, 2013: check for Respondent to file answer and separate brief. ***Pro Se Case Management Deadlines: ( Pro Se Case Management Deadline set for 7/19/2013: deadline for Respondent to file state court records in support of answer or motion for summary judgment.) Ordered by Judge Joseph F. Bataillon. (Copies mailed to pro se party and as directed)(MKR)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JOHN GIBBS,
Petitioner,
V.
ROBERT HOUSTON,
Respondent.
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4:13CV3065
MEMORANDUM
AND ORDER
Petitioner has filed a Petition for Writ of Habeas Corpus. (Filing No. 1.) The
court has conducted an initial review of the Petition for Writ of Habeas Corpus to
determine whether the claim made by Petitioner is, when liberally construed,
potentially cognizable in federal court. Petitioner has made one claim.
Condensed and summarized for clarity, the claim asserted by Petitioner is: “The
Nebraska Parole Board has not told Petitioner what to do to get parole, nor has the
Nebraska Parole Board told Petitioner the reason that they deny him parole.”
Liberally construed, the court preliminarily decides that Petitioner’s claim is
potentially cognizable in federal court. See Greenholtz v. Inmates of Nebraska Penal
and Corr. Complex, 442 U.S. 1, 12 (1979) (stating Nebraska law creates a liberty
interest in parole worthy of minimal protection under the Due Process Clause); see also
Matthies v. Houston, No. 4:12CV3069, 2013 WL 527771, *2 (D. Neb. Feb. 11, 2013)
(stating that, in order for a petition to set forth a cognizable claim, the petitioner must
allege that he did not receive an opportunity to be heard or a statement of the reasons
why parole was denied). However, the court cautions that no determination has been
made regarding the merits of this claim or any defenses to it 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 habeas corpus petition (filing no. 1), the court
preliminarily determines 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 section 2254 petition to Respondent and the Nebraska Attorney General
by regular first-class mail.
3.
By July 19, 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: July 19, 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
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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 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:
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A.
By July 19, 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
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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 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: August 19, 2013:
check for 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 this 6th day of June, 2013.
BY THE COURT:
s/ Joseph F. Bataillon
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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