Wetherell v. Kenney et al

Filing 8

MEMORANDUM AND ORDER- Upon initial review of the habeas corpus petition (Filing No. 1 ), the court preliminarily determines that Petitioner's claim is potentially cognizable in federal court. 2. The cler's office is directed to mail copie s of this Memorandum and Order and the habeas corpus petition to Respondents and the Nebraska AttorneyGeneral by regular first-class mail. ***Pro Se Case Management Deadlines: ( Pro Se Case Management Deadline set for 4/27/2015: deadline for Respond ents to file state court records in support of answer or motion for summary judgment)l If Respondents elect to file a motion for summary judgment, the procedures set forth within the order shall be filed; If Respondents elect to file an answer, the p rocedures set forth within the order shall be filed. By April 27, 2015, Respondents must file all state court recordsthat are relevant to the cognizable claims. The clerk's office is directed to set a pro se case management deadline in this case using the following text: May 27, 2015: check for Respondents answer and separate brief. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party)(MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
NICCOLE A. WETHERELL,
Petitioner,
v.
MICHAEL KENNEY, and DENISE
SCROBECKI,
Respondents.

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8:14CV406

MEMORANDUM
AND ORDER

The court has conducted an initial review of the Petition for Writ of Habeas
Corpus (Filing No. 1) to determine whether the claim made by Niccole Wetherell is,
when liberally construed, potentially cognizable in federal court. Condensed and
summarized for clarity, Petitioner raised the following claim in her habeas corpus
petition: Petitioner’s sentence of life imprisonment without parole is unconstitutional
under the United States Supreme Court’s holding in Miller v. Alabama.
The court determines that this claim is potentially cognizable in federal court.
However, the court cautions Petitioner 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 her from obtaining the relief sought.
IT IS THEREFORE ORDERED that:
1.
Upon initial review of the habeas corpus petition (Filing No. 1), the court
preliminarily determines 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 April 27, 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: April
27, 2015: 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 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.

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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.

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 April 27, 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.”

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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 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 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 court by
filing a notice stating that they will not file a reply brief and that
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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: May 27, 2015:
check for Respondents’ answer and separate brief.

6.
No discovery shall be undertaken without leave of the court. See Rule
6 of the Rules Governing Section 2254 Cases in the United States District Courts.
DATED this 12th day of March, 2015.
BY THE COURT:
Richard G. Kopf
Senior 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
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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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