Floyd v. Houston

Filing 157

MEMORANDUM AND ORDER - Petitioner's Motion for Leave to Expand the Record (filing no. 155 ) is granted in part and denied in part as set forth in this Memorandum and Order. The court will consider the materials attached to Petitioner's mot ion to the extent they are relevant to the claims presented in his habeas petition and specifically referenced in any brief Petitioner files. Petitioner's Motion for Extension of Time (filing no. 156 ) is granted. Petitioner shall have until Ju ly 26, 2018, to file and serve a brief in response to Respondents' Answer and Brief in Support. No further extensions will be granted absent good cause. No later than 30 days after Petitioners brief is filed, Respondents must file and serve a re ply 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. Th e clerk of the court is directed to set a pro se case management deadline in this case using the following text: July 26, 2018: check for Petitioners brief in response to answer and brief. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (LKO)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
WILLIAM C. FLOYD JR.,
Petitioner,

8:13CV195

vs.
SCOTT FRAKES, Director of the
Nebraska Department of Correctional
Services; and BRAD HANSEN, Warden
Tecumseh State Correctional Institution;

MEMORANDUM
AND ORDER

Respondents.
This matter is before the court on Petitioner William C. Floyd Jr.’s (“Floyd”)
Motion for Leave to Expand the Record (filing no. 155), and Motion for Extension
of Time (filing no. 156). The court will grant in part, and deny in part, Floyd’s
motion to expand the record but will grant his motion for an extension of time.
I. MOTION FOR LEAVE TO EXPAND RECORD
Floyd asks the court to expand the record to include several exhibits attached
to his motion because “[i]n filing no. 150 [he] is not allowed to attach any exhibits,
etc. to [his] response and brief that would support [his] claims and to refute
state[’]s theories.” (Filing No. 155 at CM/ECF p.1.) Floyd asserts that the materials
he seeks to include in the record are necessary for him to prove the state
impediments that have denied Floyd access to the courts. (Id. at CM/ECF pp.1–2.)
Further, Floyd asks the court to issue court orders to certain departments and
individuals to obtain various documents. (Id. at CM/ECF p.3.)

Liberally construed, Floyd seeks (1) to introduce various documents for the
court to consider in support of Floyd’s brief, which is yet to be filed with the court,
and (2) to obtain discovery of the following materials:
 Tecumseh State Correctional Institution (“TSCI”) law library sign in/out
log sheets for all the days the law librarian, Patty Hughes, was not in the
library; “Om’s and A.R. for the law library and mail-room”;
 TSCI mail-room log sheets for Floyd’s out-going legal mail and
incoming legal mail;
 Examination by TSCI medical department doctor of Floyd’s physical
appearance, specifically his “gait of being born pigeon toed”;
 “The white copy” of Floyd’s TSCI inmate interview request forms
regarding his out-going legal mail “that ‘Mail-room’ keeps”;
 “The Omaha Police Department Property & evidence sign in/out log in
sheet for evidence pertaining to RB C42275 and the audio/video of the
first interview”;
 “The Omaha Police Department Property & evidence police reports and
supplemental reports to RB A89103 from April 24, 2003”;
 “The Omaha Police Department Property & evidence sign in/out log in
sheet for property and evidence pertaining to RB A89103”;
 Phone records and cell phone tower location information for Shantelle
Vickers/Davis’ Cricket cell phone on October 7, 2003, up until and
during the time of the shooting; and
 Information from the “Omaha Motor Vehicle department” regarding
Floyd’s eye sight and need for glasses to operate a motor vehicle.
(Id. at CM/ECF pp.3–4.)

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With respect to Floyd’s request to “expand the record”1 to include the
documents attached to his motion, the court will consider the materials to the
extent the materials are relevant to his habeas claims and specifically referenced in
Floyd’s brief. While the court did admonish Floyd that he “must not submit any
other documents unless directed to do so by the court,” it was not the court’s intent
to prohibit Floyd from filing supporting materials along with his brief. (See Filing
No. 150 at CM/ECF p.3.) Rather, the court wanted to emphasize that Floyd
“should respond to the Respondents’ Answer and arguments in their supporting
brief . . . [and] not re-litigat[e] objections on which this court has already ruled.”
(Id.)
While Floyd does not seek to re-litigate a previously denied “objection”
here, he does raise a discovery request similar to one that the court rejected in its
March 23, 2018 Memorandum and Order. In that order, the court denied Floyd’s
motion to compel discovery from a third party related to a 911 call and Shantelle
Vickers/Davis’ cell phone records from October 7, 2003, because he had not been
granted leave to conduct discovery and, in any case, had not demonstrated good
cause for the discovery sought. (Id. at CM/ECF pp.2–3.) For those same reasons,
the court will deny Floyd’s request for court orders compelling production of the
documents listed above. See Williams v. Steele, 2013 WL 5838727, at *2 (E.D.
Mo. Oct. 30, 2013) (“A habeas petitioner, unlike the usual civil litigant in federal
court, is not entitled to discovery as a matter of course.”) (citing Bracy v. Gramley,
520 U.S. 899, 904 (1997)); Rule 6 of the Rules Governing Section 2254 Cases in
the United States District Courts (“[a] judge may, for good cause, authorize a party
to conduct discovery under the Federal Rules of Civil Procedure and may limit the
extent of discovery”).

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Floyd has not objected to the designation of state court records filed by the Respondents
and does not seek additional records from the designation pursuant to the procedure set forth in
the court’s progression order. (See Filing No. 128 at CM/ECF p.7.) It appears that Floyd only
seeks to introduce additional materials relevant to arguments he proposes to raise in his brief.

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II. MOTION FOR EXTENSION OF TIME
Floyd seeks additional time to file a brief in response to the Respondents’
Answer and Brief. (Filing No. 156.) The court will grant Floyd’s motion and he
will have 30 days from the date of this order to file a brief in response. No further
extensions will be granted absent a showing of good cause. Again, Floyd is
reminded that his brief in response should respond to the Respondents’ Answer
and arguments in their supporting brief. Accordingly,
IT IS ORDERED that:
1.
Petitioner’s Motion for Leave to Expand the Record (filing no. 155) is
granted in part and denied in part as set forth in this Memorandum and Order. The
court will consider the materials attached to Petitioner’s motion to the extent they
are relevant to the claims presented in his habeas petition and specifically
referenced in any brief Petitioner files.
2.
Petitioner’s Motion for Extension of Time (filing no. 156) is granted.
Petitioner shall have until July 26, 2018, to file and serve a brief in response to
Respondents’ Answer and Brief in Support. No further extensions will be
granted absent good cause.
3.
No later than 30 days after Petitioner’s brief is filed, Respondents
must 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.
4.
The clerk of the court is directed to set a pro se case management
deadline in this case using the following text: July 26, 2018: check for Petitioner’s
brief in response to answer and brief.

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Dated this 26th day of June, 2018.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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