Oppong-Peprah v. Holder et al

Filing 5

MEMORANDUM AND ORDER - Upon initial review of the Petition (filing no. 1 ), the court preliminarily determines that Petitioner's claims, as set forth in this Memorandum and Order, are potentially cognizable in federal court. The Clerk of the c ourt is directed to mail copies of this Memorandum and Order and the Petition to Respondents and the United States Attorney for the District of Nebraska by regular first-class mail. By January 23, 2012, Respondent shall file a motion for summary judg ment 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 23, 2012: deadline for Respondent to file state court records in support o f answer or motion for summary judgment. If Respondent elects to file an answer, the procedures as set out shall be followed by Respondent and Petitioner. The Clerk of the court is directed to set a pro se case management deadline in this case using the following text: February 20, 2011: check for Respondent to file answer and separate brief. No discovery shall be undertaken without leave of the court. Petitioner's Application for Order to Show Cause and Proposed Order (filing nos. 3 and 4 ) are denied. Ordered by Senior Judge Richard G. Kopf. (Copy mailed/e-mailed to pro se party and as directed)(GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
KWADWO OPPONG-PEPRAH, A#
098 421 284,
Petitioner,
v.
ERIC HOLDER, Attorney General,
JANET NAPOLITANO, Secretary of
the Department of Homeland
Security, SCOTT BANIECKE, U.S.
ICE Field Office Director for The
Saint Paul Field Office, and
WARDEN OF IMMIGRATION
DETENTION FACILITY,
Respondents.

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8:11CV383

MEMORANDUM
AND ORDER

The court has conducted an initial review of the Petition for Writ of Habeas
Corpus (filing no. 1) to determine whether the claims made by Petitioner are, when
liberally construed, potentially cognizable in federal court. Petitioner has made three
claims.
Condensed and summarized for clarity, the claims asserted by Petitioner are:
Claim One:

Petitioner’s continued detention by Respondents violates 8
U.S.C. § 1231(a)(6) because the six-month detention period
has expired and his removal to Ghana “is not significantly
likely to occur in the reasonably foreseeable future.”

Claim Two:

Petitioner’s continued detention by Respondents violates
his right to substantive due process because the six-month
detention period has expired and Respondents’ interest in

detaining Petitioner to effectuate removal does not justify
indefinite

detention

of

Petitioner

especially

where

Petitioner’s removal to Ghana “is not significantly likely to
occur in the reasonably foreseeable future.”
Claim Three:

Petitioner’s continued detention by Respondents violates
his right to procedural due process because Respondents
have denied Petitioner a meaningful opportunity to
demonstrate that he should not be detained.

Liberally construed, the court preliminarily decides that all three of these claims
are potentially cognizable in federal court. 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.
Also pending is Petitioner’s Application for Order to Show Cause and Proposed
Order. (Filing Nos. 3 and 4.) In his Application, Petitioner asks the court to order
Respondents to show cause why his Petitioner for Writ of Habeas Corpus should not
be granted.

Petitioner’s request is denied and Respondents shall respond in

accordance with the procedures below.
IT IS THEREFORE ORDERED that:
1.

Upon initial review of the Petition (filing no. 1), the court preliminarily

determines that Petitioner’s claims, as set forth in this Memorandum and Order, are
potentially cognizable in federal court.
2.

The Clerk of the court is directed to mail copies of this Memorandum and

Order and the Petition to Respondents and the United States Attorney for the District
of Nebraska by regular first-class mail.
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3.

By January 23, 2012, 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 23, 2012: 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
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
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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 January 23, 2012, Respondent shall file all state court records
which are relevant to the cognizable claims. 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
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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.
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.

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: February 20, 2011:
check for Respondent to file answer and separate brief.
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6.

No discovery shall be undertaken without leave of the court.

7.

Petitioner’s Application for Order to Show Cause and Proposed Order

(filing nos. 3 and 4) are denied.
DATED this 7 th day of December, 2011.
BY THE COURT:
Richard G. Kopf
Senior United States District Judge

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