Hernandez v. Sabatka-Rine

Filing 8

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 court is directed to mail copies of thi s Memorandum and Order and the habeas corpus petition to Respondent and the Nebraska Attorney General by regular first-class mail. By January 29, 2015, 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: January 29, 2015: deadline for respondent to file state court records in support of answer or motion for summary judgment. The clerk of court is directed to set a pro se case management deadline in this case using the following text: February 30, 2015: check for respondent to file answer and separate brief. Ordered by Senior Judge Lyle E. Strom. (Copies mailed to pro se party and as directed)(SLP)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

JUAN ANTONIO HERNANDEZ,

)
)
Petitioner,
)
)
v.
)
)
MRS. DIANE SABATKA-RINE,
)
Warden, Nebraska State
)
Penitentiary,
)
)
Respondent.
)
______________________________)

4:14CV3172

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.
claim:

Petitioner asserts one

that he was denied the effective assistance of counsel in

violation of the Sixth and Fourteenth Amendments because trial
counsel did not effectively represent him during plea
negotiations.
Liberally construed, the Court preliminarily decides
that petitioner’s claim is potentially cognizable in federal
court.

However, the Court cautions that no determination has

been made regarding the merits of the claim or any defenses to it

or whether there are procedural bars that will prevent petitioner
from obtaining the relief sought.
IT IS ORDERED:
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 court is directed to mail copies of

this Memorandum and Order and the habeas corpus petition to
Respondent and the Nebraska Attorney General by regular
first-class mail.
By January 29, 2015, respondent shall file a

3.

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:
January 29, 2015:

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
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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, she should
inform the Court by filing a notice stating that
she 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.

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5.

If respondent elects to file an answer, the

following procedures shall be followed by respondent and
petitioner:
A.

By January 29, 2015, 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 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 zvourt 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, she should
inform the Court by filing a notice stating that
she will not file a reply brief and that the
merits of the petition are therefore fully
submitted for decision.

F.

The clerk of court is directed to set a pro se
case management deadline in this case using the
following text: February 30, 2015: check for
respondent to file answer and separate brief.

6.

No discovery shall be undertaken without leave of

the Court.

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.

See Rule 6 of the Rules Governing Section 2254 Cases

in the United States District Courts.
DATED this 15th day of December, 2014.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

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