Harper v. Houston et al

Filing 26

MEMORANDUM AND ORDER - Parts 1 and 2 of Petitioner's habeas claim, as set forth in the court's March 9, 2012, Memorandum and Order are dismissed without prejudice. By July 9, 2012, Respondents shall file all state court records which are relevant to the remaining cognizable claim (Part 3). The Clerk of the court is directed to set a pro se case management deadline in this case using the following text: August 8, 2012: check for Respondents 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)(GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ERNEST C. HARPER,
Petitioner,
v.
ROBERT P. HOUSTON, Director
Nebraska Department of Corr., FRED
BRITTEN, Warden, Tecumseh
Correctional Inst., and NEBRASKA
DEPARTMENT OF CORRECTIONAL
SERVICES,
Respondents.

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CASE NO. 8:11CV324

MEMORANDUM
AND ORDER

This matter is before the court on its own motion. On March 9, 2012, the court
entered a Memorandum and Order determining that Parts 1 and 2 of Petitioner’s sole claim
in this matter were successive. (Filing No. 20.) The court gave Petitioner until April 9,
2012, in which to seek authorization from the Eighth Circuit Court of Appeals to proceed
on these successive claims or to amend his Petition to delete the successive claims. (Id.
at CM/ECF p. 5.) The court warned Petitioner that failure to take either action by April 9,
2012, would result in dismissal of Parts 1 and 2 of Petitioner’s sole claim and that this
matter would proceed as to Part 3 only. (Id.) Petitioner thereafter sought reconsideration
of the court’s March 9, 2012, Memorandum and Order (Filing No. 21) and a certificate of
appealability (Filing No. 22). The court denied both requests. (Filing No. 24.)
Petitioner also filed a separate Response to the March 9, 2012, Memorandum and
Order indicating that he had sought authorization from the Eighth Circuit to proceed on his
successive claims. (Filing No. 25.) However, there is nothing in the court’s records
showing that Petitioner has, indeed, sought such authorization. Further, the Clerk of the

court has confirmed that the Eighth Circuit Court of Appeals has not received any
documents from Petitioner relating to this matter, nor is anything pending in that court
relating to this matter. (See Public Remark dated May 23, 2012, text-only entry.) Thus,
in accordance with its March 9, 2012, Memorandum and Order, the court will dismiss Parts
1 and 2 of Petitioner’s claim and will progress this matter as to Part 3 only.
IT IS THEREFORE ORDERED that:
1.

Parts 1 and 2 of Petitioner’s habeas claim, as set forth in the court’s March
9, 2012, Memorandum and Order are dismissed without prejudice;

2.

By July 9, 2012, Respondents shall file all state court records which are
relevant to the remaining cognizable claim (Part 3). 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;”

3.

No later than 30 days after the filing of the relevant state court records,
Respondents 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 remaining allegations, 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;

4.

Copies of the answer, the designation, and Respondents’ brief shall be
served upon Petitioner at the time they are filed with the court except that
Respondents are only required to provide Petitioner with a copy of the
specific pages of the designated record which are cited in Respondents’
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;

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5.

No later than 30 days following the filing of Respondents’ brief, Petitioner
shall file and serve a brief in response. Petitioner shall submit no other
documents unless directed to do so by the court;

6.

No later than 30 days after the filing of Petitioner’s brief, Respondents shall
file and serve a reply brief. In the event that Respondents elect not to file a
reply brief, they should inform the court by filing a notice stating that they will
not file a reply brief and that the merits of the petition are therefore fully
submitted for decision;

7.

The Clerk of the court is directed to set a pro se case management deadline
in this case using the following text: August 8, 2012: check for Respondents
to file answer and separate brief; and

8.

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 25th day of May, 2012.
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
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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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