Ildefonso v. Gage

Filing 18

MEMORANDUM AND ORDER - Upon initial review of the Amended Petition for Writ of Habeas Corpus (Filing No. 13 ), I preliminarily determine that Ildefonso's 81 claims are potentially cognizable in federal court. The clerk's office is di rected to mail copies of this memorandum and order and the amended petition (Filing No. 13 ) to the respondent and the Nebraska Attorney General by regular first-class mail. By February 21, 2014, the respondent shall file a motion for summa ryjudgment 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: February 21, 2014: deadline for the respondent to file state court r ecords in support of answer or motion for summary judgment. Ordered by Senior Judge Warren K. Urbom. (Copies mailed as directed)(AOA) Modified on 1/29/2014 to reflect this 1/8/14 order was discovered not docketed on 1/27/14 and was then uploaded to the system on 1/27/14 but being filed as of 1/8/14 (CCB).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ARLYN P. ILDEFONSO,
Petitioner,
v.
BRIAN GAGE, Warden,
Respondent.

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4:13CV3110
MEMORANDUM
AND ORDER ON INITIAL
REVIEW OF THE AMENDED
PETITION FOR WRIT OF
HABEAS CORPUS

An initial review of the Amended Petition for Writ of Habeas Corpus (Filing
No. 13) was conducted to determine whether the claims made by the petitioner, Arlyn
P. Ildefonso, (“Ildefonso”) are, when liberally construed, potentially cognizable in
federal court. Ildefonso has raised 81 claims. Upon careful review of the amended
petition, I preliminarily decide that Ildefonso’s 81 claims are potentially cognizable
in federal court.1 However, I caution Ildefonso 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 Ildefonso from obtaining the relief sought.
IT IS THEREFORE ORDERED that:
1.
Upon initial review of the Amended Petition for Writ of Habeas Corpus
(Filing No. 13), I preliminarily determine that Ildefonso’s 81 claims are potentially
cognizable in federal court.

The court’s normal practice is to summarize a petitioner’s claims in its initial
review of a petition for writ of habeas corpus. However, after careful review of the
amended petition in this case, I have determined that such a summary is unnecessary,
as Ildefonso clearly sets forth the 81 grounds on which he claims he is being held in
violation of the Constitution of the United States, and their supporting facts. (See
generally Filing No. 13.)
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2.
The clerk’s office is directed to mail copies of this memorandum and
order and the amended petition (Filing No. 13) to the respondent and the Nebraska
Attorney General by regular first-class mail.
3.
By February 21, 2014, the 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: February 21, 2014: deadline for the respondent to file state court records in
support of answer or motion for summary judgment.
4.
If the respondent elects to file a motion for summary judgment, the
following procedures shall be followed by the respondent and Ildefonso:
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 the respondent’s brief shall be
served upon Ildefonso except that the respondent is only required
to provide Ildefonso with a copy of the specific pages of the
record which are cited in the respondent’s brief. In the event that
the designation of state court records is deemed insufficient by
Ildefonso, Ildefonso may file a motion with the court requesting
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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, Ildefonso shall file and serve a brief in
opposition to the motion for summary judgment. Ildefonso shall
submit no other documents unless directed to do so by the court.

E.

No later than 30 days after the filing of Ildefonso’s brief, the
respondent shall file and serve a reply brief. In the event that the
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, the 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. The 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 Ildefonso.

5.
If the respondent elects to file an answer, the following procedures shall
be followed by the respondent and Ildefonso:
A.

By February 21, 2014, the respondent shall file all state court
records that are relevant to the cognizable claims. See, e.g., Rule
5(c)-(d) of the Rules Governing Section 2254 Cases in the United
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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, the 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 Ildefonso’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 the respondent’s brief
shall be served upon Ildefonso at the time they are filed with the
court except that the respondent is only required to provide
Ildefonso with a copy of the specific pages of the designated
record which are cited in the respondent’s brief. In the event that
the designation of state court records is deemed insufficient by
Ildefonso, Ildefonso 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 respondent’s
brief, Ildefonso shall file and serve a brief in response. Ildefonso
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shall submit no other documents unless directed to do so by the
court.
E.

No later than 30 days after the filing of Ildefonso’s brief, the
respondent shall file and serve a reply brief. In the event that the
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: March 24, 2014:
check for the 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 January 8, 2014.
BY THE COURT

__________________________________________
Warren K. Urbom
United States Senior District Judge

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of Nebraska does not endorse, recommend, approve, or guarantee any third parties or the services or products they
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