Melgoza Ramirez v. Britten

Filing 4

MEMORANDUM AND ORDER - Upon initial review of the petition 1 , the Court preliminarily determines that petitioner's claim, as set forth in this memorandum and order, is potentially cognizable in federal court. By April 23, 2012, responden t 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: April 23, 2012: deadline for responden t to file state court records in support of answer or motion for summary judgment. If respondent elects to file a motion for summary judgment, the procedures set forth in the order shall be followed by respondent and petitioner. If respondent ele cts to file an answer, the procedures set forth in the order 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: May 23, 2012: check for respondent to file answer and separate brief. Ordered by Senior Judge Lyle E. Strom. (Copy mailed to pro se party) (copies mailed to respondent and Nebraska Attorney General as directed)(ADB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JUAN A. MELGOZA RAMIREZ,

)
)
Petitioner,
)
)
v.
)
)
FRED BRITTEN,
)
)
Respondent.
)
______________________________)

8:12CV74

MEMORANDUM AND ORDER

The Court has conducted an initial review of the
Petition for Writ of Habeas Corpus (“Petition”) (Filing No. 1) to
determine whether the claims made by petitioner are, when
liberally construed, potentially cognizable in federal court.
Petitioner has made one claim.

The claim asserted by petitioner

is:
Petitioner was denied due process
of law and the effective assistance
of counsel in violation of the
Sixth and Fourteenth Amendments
because his trial counsel failed
to: (1) obtain experts for forensic
and other matters; (2) object or
otherwise advise petitioner to
withdraw his guilty plea upon
hearing “the factually untrue
factual basis;” (3) investigate and
interview key witnesses for the
defense, including coroner, crime
lab, and law enforcement witnesses;
and (4) investigate and interview

12 separate fact witnesses1
favorable to petitioner.
Liberally construed, the Court preliminarily decides
that all parts of petitioner’s claim 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 thereto or whether there are procedural bars that
will prevent petitioner from obtaining the relief sought.
IT IS ORDERED:
1.

Upon initial review of the petition (Filing No.

1), the Court preliminarily determines that petitioner’s claim,
as set forth in this memorandum and order, is 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 respondent and
the Nebraska Attorney General by regular first-class mail.
3.

By April 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:

1

These individuals are listed in the petition (Filing No. 1
at CM/ECF pp. 20-26).
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April 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 opposition to
the motion for summary judgment. Petitioner
shall submit no other documents unless
directed to do so by the Court.
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E.

F.

5.

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.
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.

If respondent elects to file an answer, the

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

By April 23, 2012, respondent shall file all
state court records which 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
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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.

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
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using the following text: May 23, 2012: check
for respondent to file answer and separate
brief.
6.
the Court.

No discovery shall be undertaken without leave of
See Rule 6 of the Rules Governing Section 2254 Cases

in the United States District Courts.
DATED this 9th day of March, 2012.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

____________________________
* 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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