Pittman v. Kenney

Filing 8

MEMORANDUM AND ORDER -Upon initial review of the habeas corpus petition (Filing No. 1 ), the court preliminarily determines that Petitioners 23 claims are potentially cognizable in federal court. The Clerk of the Court is directed to mail copi es of this Memorandum and Order and the Petition to Respondent and the Nebraska Attorney General by regular first-class mail. By September 15, 2014, Respondent shall file a motion for summary judgment or state court records in support of an answe r. If Respondent elects to file a motion for summary judgment, the procedures set forth within the order shall be followed by Respondent and Petitioner. If Respondent elects to file an answer, the procedures set forth within the order shall be followed. 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. ***Pro Se Case Management Deadlines: ( Pro Se Case Management Deadline set for 9/15/2014: Deadline for Respondent to file state court records in support of answer or motion for summary judgment; ( Pro Se Case Management Deadline set for 10/15/2014: check for Respondent to file answer and separate brief) Ordered by Judge Joseph F. Bataillon. (Copy mailed to pro se party and as directed)(MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
RUSSELL S. PITTMAN,
Petitioner,
v.
MICHAEL L. KENNEY,
Respondent.

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4:14CV3096

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 claims made by Petitioner are, when liberally construed,
potentially cognizable in federal court. Petitioner has raised 23 claims set forth on
pages 45 through 278 of his Petition. (See Filing No. 1 at CM/ECF pp. 45-199; Filing
No. 1-1 at CM/ECF pp. 1-79.)
Liberally construed, the court preliminarily decides that Petitioner’s 23 claims
are potentially cognizable in federal court.1 However, the court cautions that no
determination has been made regarding the merits of these claims or any defenses to
them 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 23 claims are potentially cognizable in
federal court.
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The court’s normal practice is to summarize Petitioner’s claims in its initial review of a
petition for writ of habeas corpus. However, after careful review of the habeas corpus petition in this
case, the court has determined that such a summary is unnecessary, as Petitioner clearly sets forth
his 23 claims and their supporting facts.

2.
The Clerk of the Court is directed to mail copies of this Memorandum
and Order and the Petition to Respondent and the Nebraska Attorney General by
regular first-class mail.
3.
By September 15, 2014, 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: September 15, 2014: 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
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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:
A.

By August 8, 2014, 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 States
District Courts. Those records shall be contained in a separate

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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.

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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: October 15, 2014:
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 29th day of July, 2014.
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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