Oliveira v. County Attorney

Filing 8

MEMORANDUM AND ORDER -Upon initial review of the Petition (filing no. 1 ), the court preliminarily decides that Petitioners claim is potentially cognizable in federal court. The Clerk of the court is directed to mail copies of this Memorandum and Order and the Petition (filing no. 1 ) to Respondent and the United States Attorney for the District of Nebraska by regular first-class mail. By September 12, 2013, Respondent shall file a motion for summary judgment or records in support of an answer. If Respondent elects to file a motion for summary judgment, the procedure set forth within the Order shall be followed. No discovery shall be undertaken without leave of the court. ***Pro Se Case Management Deadlines: ( Pro Se Case Management Deadline set for 9/12/2013: deadline for Respondent to file records in support of answer or motion forsummary judgment)Ordered by Judge John M. Gerrard. (Copy mailed to pro se party and as directed)(MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JOSE CARLOS OLIVEIRA,
Petitioner,
v.
COUNTY ATTORNEY,
Defendant.

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8:13CV147

MEMORANDUM
AND ORDER

The court has conducted an initial review of the Petition for Writ of Habeas
Corpus (filing no. 1) to determine whether Petitioner’s claim is potentially cognizable
in federal court.
Condensed and summarized for clarity, Petitioner alleges that he is currently
being held on an immigration charge and has a motion for withdrawal of a guilty plea
pending in state court. (Filing No. 1 at CM/ECF p. 1.) Liberally construed, Petitioner
asserts his current detention violates his due process rights and his guilty plea was
obtained in violation of his due process rights.1 (Id. at CM/ECF pp. 1-12.)
The court preliminarily decides that Petitioner’s claim, as set forth in this
Memorandum and Order, is potentially cognizable in federal court. However, the
court cautions Petitioner that no determination has been made regarding the merits
of his claim or any defenses thereto or whether there are procedural bars that will
prevent Petitioner from obtaining the relief sought.

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Petitioner’s claim, as set forth in this Memorandum and Order, combines
Petitioner’s allegations from grounds one, two, and three of the Petition. (Filing No.
1 at CM/ECF pp. 1-12.)

IT IS THEREFORE ORDERED that:
1.
Upon initial review of the Petition (filing no. 1), the court preliminarily
decides that Petitioner’s claim 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 (filing no. 1) to Respondent and the United States Attorney
for the District of Nebraska by regular first-class mail.
3.
By September 12, 2013, Respondent shall file a motion for summary
judgment or 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
12, 2013: deadline for Respondent to file 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
records as are necessary to support the motion. Those records
shall be contained in a separate filing entitled: “Designation of
Records in Support of Motion for Summary Judgment.”

C.

Copies of the motion for summary judgment, the designation,
including records, and Respondent’s brief shall be served upon
Petitioner.
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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.

F.

5.

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.

If the motion for summary judgment is denied, Respondent shall
file an answer, a designation and a brief that complies with the
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.

No later than 30 days after the filing of the answer, Respondent
shall file a separate brief. 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 remedies,
a procedural bar, non-retroactivity, a statute of limitations, or
because the petition is an unauthorized second or successive
petition.

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B.

C.

Copies of the answer, the designation, and Respondent’s brief
shall be served upon Petitioner.

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.

6.

The answer shall be supported by all records which are relevant
to the cognizable claims. Those records shall be contained in a
separate filing entitled: “Designation of Records In Support of
Answer.”

No later than 30 days after the filing of Petitioner’s brief,
Respondent shall file and serve a reply brief.

No discovery shall be undertaken without leave of the court.

DATED this 31st day of July, 2013.
BY THE COURT:
s/ John M. Gerrard
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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