Nichols v. Frakes et al

Filing 8

MEMORANDUM AND ORDER that the clerk of the court 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. By September 14, 2015, Respondents must file a 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: September 14, 2015: deadline for Respondent s to file state court records in support of answer or motion for summary judgment. The clerk of the court is directed to set a pro se case management deadline in this case using the following text: October 12, 2015: check for Respondents' answer and separate brief. Ordered by Senior Judge Joseph F. Bataillon. (Copy mailed to pro se party) (copy mailed as directed) (ADB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
DEREK R. NICHOLS,

)
)
Petitioner,
)
)
v.
)
)
SCOTT FRAKES, Director, NE
)
Dept. of Corr. Srvs.,, and BARBARA )
LEWIEN, Warden of Omaha
)
Correctional Center,
)
)
Respondents.
)

8:15CV66

MEMORANDUM
AND ORDER

This matter is before the court on preliminary review of Petitioner Derek
Nichols’s (“Petitioner”) Petition for Writ of Habeas Corpus (Filing No. 1) filed on
February 23, 2015. Petitioner set forth that he was convicted of attempted sexual
assault and contributing to the delinquency of a minor in the District Court of Buffalo
County, Nebraska. He was sentenced on January 28, 2013. He did not file a direct
appeal or a postconviction action in Nebraska’s state courts. (Id.)
It appears from the face of the habeas corpus petition that Petitioner’s claims
may be barred by the statute of limitations. See 28 U.S.C. § 2244(d)(1). In order to
ensure a just and fair resolution of this matter, the court will enter an order
progressing this case to final resolution.
IT IS THEREFORE ORDERED that:
1.
The clerk of the court 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.

2.
By September 14, 2015, Respondents must file a 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: September 14, 2015: deadline for Respondents to file state court records in
support of answer or motion for summary judgment.
3.
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.

4.
If Respondents elect to file an answer, the following procedures must be
followed by Respondents and Petitioner:
A.

By September 14, 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
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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 of the court is directed to set a pro se case management
deadline in this case using the following text: October 12, 2015:
check for Respondents’ answer and separate brief.

5.
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 30th day of July, 2015.
BY THE COURT:

s/ Joseph F. Bataillon
Senior United States District Judge

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of Nebraska does not endorse, recommend, approve, or guarantee any third parties or the services or products they
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