Brown v. Dept. of Health & Human Svs. et al

Filing 10

MEMORANDUM AND ORDER- Upon initial review of the habeas corpus 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 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. By November 24, 2014, respondent shall file a motion for summary judgment or st ate court records in support of an answer. If respondent elects to file a motion for summary judgment, the procedures set forth within the other shall be followed by respondent and petitioner. If respondent elects to file an answer, procedures se t forth within the order shall be followed by respondent andpetitioner. ***Pro Se Case Management Deadlines: ( Pro Se Case Management Deadline set for 11/24/2014: deadline for respondent to file state court records in support of answer or motion for summary judgment.) (Pro Se Case Management Deadline set for 12/23/2014: check for respondent to file answer and separate brief. )Ordered by Senior Judge Lyle E. Strom. (Copy mailed to pro se party and as directed)(MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ROBERT PARDEE,

)
)
Petitioner,
)
)
v.
)
)
MICHAEL KINNEY, Director,
)
Neb. Dept. C.S.,
)
)
Respondent.
)
______________________________)

8:14CV185

MEMORANDUM AND ORDER

Petitioner has filed a Petition for Writ of Habeas
Corpus (Filing No. 1).

The Court has conducted an initial review

of the Petition for Writ of Habeas Corpus to determine whether
the claims made by petitioner are, when liberally construed,
potentially cognizable in federal court.

The claims asserted by

petitioner are:
Claim One: Petitioner was denied
the effective assistance of counsel
in violation of the Sixth and
Fourteenth Amendments because
petitioner’s trial counsel (a)
advised him to waive his
preliminary hearing; (b) failed to
move to quash the information
charging petitioner with
racketeering; (c) failed to
investigate the elements of a
racketeering offense; (d) failed to
move the Court for an order
directing the State of Nebraska to
“immediately provide discovery
materials to the defense;” and (e)
failed to challenge the illegal
custodial interrogation to which

petitioner was subjected.
No. 1 at CM/ECF p. 4.)

(Filing

Claim Two: Petitioner was
subjected to an illegal custodial
interrogation in violation of his
rights under the Fifth and
Fourteenth Amendments. (Filing No.
1 at CM/ECF pp. 3-4.)
Liberally construed, the Court preliminarily decides
that petitioner’s claims are potentially cognizable in federal
court.

However, petitioner is cautioned 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.
IT IS ORDERED:
1.

Upon initial review of the habeas corpus 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 respondent and
the Nebraska Attorney General by regular first-class mail.
By November 24, 2014, respondent shall file a

3.

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:
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November 24, 2014:

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.

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
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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 November 24, 2014, respondent shall file all
state court records that 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 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

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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 using the
following text: December 23, 2014: check for
respondent to file answer and separate brief.

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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 10th day of October, 2014.
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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