Hillard v. Lewien et al

Filing 8

MEMORANDUM AND ORDER that upon initial review of the habeas corpus petition 1 , it is preliminarily determined that petitioner's claim is potentially cognizable in federal court. The clerk's office is directed to mail copies of this Memor andum and Order and the habeas corpus petition to respondents and the Nebraska Attorney General by regular first-class mail. The clerk's office is directed to set a pro se case management deadline for 3/12/15: deadline for respondents to file s tate court records in support of answer or motion for summary judgment. The clerk's office is directed to set a pro se case management deadline in this case using the following text: April 13, 2015:check for respondent's answer and separate brief. This matter will progress in the manner set forth above. Accordingly, petitioners Motion to Be Brought Before the Court 6 is denied. Ordered by Senior Judge Lyle E. Strom. (Copies mailed as directed) (JSF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ROBERT S. HILLARD,

)
)
Petitioner,
)
)
v.
)
)
BARBARA LEWIEN, Warden, MIKE )
KINNEY, Director, and
)
NEBRASKA DEPT OF CORRECTIONS, )
)
Respondents.
)
______________________________)

8:14CV310

MEMORANDUM AND ORDER

This matter is before the Court on initial review of
petitioner Robert Hillard’s Petition for Writ of Habeas Corpus.
Petitioner raises the following claim in his habeas corpus
petition:

Petitioner is being illegally detained by the State of

Nebraska because “the trial court lacked jurisdiction to remand
[him] to the custody of the Nebraska Department of Corrections
because [he] had completed the mandatory portion of [his]
sentence and [the] trial court had no record of the taking of any
good time.”

(Filing No. 1 at CM/ECF p. 7.)

The Court preliminarily decides that petitioner’s claim
is potentially cognizable in federal court.

However, the Court

cautions that no determination has been made regarding the merits
of the claim or any defenses to it 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), it is preliminarily determined that petitioner’s
claim is potentially cognizable in federal court.
2.

The clerk’s office is directed to mail copies of

this Memorandum and Order and the habeas corpus petition to
respondents and the Nebraska Attorney General by regular
first-class mail.
3.

By March 12, 2015, respondents must file a motion

for summary judgment or state court records in support of an
answer.

The clerk’s office is directed to set a pro se case

management deadline in this case using the following text:
12, 2015:

March

deadline for respondents to file state court records

in support of answer or motion for summary judgment.
4.

If respondents elect to file a motion for summary

judgment, the following procedures must be followed by
respondents and petitioner:
A. The motion for summary judgment
must be accompanied by a separate
brief, submitted at the time the
motion is filed.
B. The motion for summary judgment
must be supported by any state
court records that are necessary to
support the motion. Those records
must be contained in a separate
filing entitled: “Designation of
-2-

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
respondents’ brief must be served
on petitioner except that
respondents are only required to
provide petitioner with a copy of
the specific pages of the record
that are cited in respondents’
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
must 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 must
file and serve a brief in
opposition to the motion for
summary judgment. Petitioner may
not submit other documents unless
directed to do so by the Court.
E. 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 motion is
therefore fully submitted for
decision.

-3-

F. If the motion for summary
judgment is denied, respondents
must file an answer, a designation
and a brief that complies with
terms of this order. (See the
following paragraph.) The
documents must be filed no later
than 30 days after the denial of
the motion for summary judgment.
Respondents are warned that failure
to file an answer, a designation
and a brief in a timely fashion may
result in the imposition of
sanctions, including petitioner’s
release.
5.

If respondents elect to file an answer, the

following procedures must be followed by respondents and
petitioner:
A. By March 12, 2015, respondents
must 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 must be
contained in a separate filing
entitled: “Designation of State
Court Records in Support of
Answer.”
B. No later than 30 days after the
relevant state court records are
filed, respondents must file an
answer. The answer must be
accompanied by a separate brief,
submitted at the time the answer is
filed. Both the answer and the
brief must address all matters
germane to the case including, but
not limited to, the merits of
petitioner’s allegations that have
-4-

survived initial review, and
whether any claim is barred by a
failure to exhaust state remedies,
a procedural bar, nonretroactivity, 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 respondents’ brief
must be served on petitioner at the
time they are filed with the Court
except that respondents are only
required to provide petitioner with
a copy of the specific pages of the
designated record that are cited in
respondents’ 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
must set forth the documents
requested and the reasons the
documents are relevant to the
cognizable claims.
D. No later than 30 days after
respondents’ brief is filed,
petitioner must file and serve a
brief in response. Petitioner must
not submit any other documents
unless directed to do so by the
Court.
E. 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
-5-

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.
F. The clerk’s office is directed
to set a pro se case management
deadline in this case using the
following text: April 13, 2015:
check for respondent’s answer and
separate brief.
6.
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.
7.
above.

This matter will progress in the manner set forth

Accordingly, petitioner’s Motion to Be Brought Before the

Court (Filing No. 6) is denied.
DATED this 27th day of January, 2015.
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.

-6-