Gardner v. Nebraska

Filing 18

MEMORANDUM AND ORDER that the clerk of the court is directed to mail copies of this Memorandum and Order and the amended habeas corpus petition to Respondent and the Nebraska Attorney General by regular first-class mail. The clerk of the court is dir ected to set a pro se case management deadline in this case using the following text: January 5, 2016: check for Respondent's answer andseparate brief. Ordered by Chief Judge Laurie Smith Camp. (Copy mailed to pro se party and as directed) (JSF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
BRYANT GARDNER,
Petitioner,
v.
STATE OF NEBRASKA,
Respondent.

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8:15CV132

MEMORANDUM
AND ORDER

This matter is before the Court on preliminary review of Petitioner Bryant Gardner’s
Amended Petition for Writ of Habeas Corpus (Filing No. 8) brought pursuant to 28 U.S.C.
§ 2254.

The purpose of this review is to determine whether Petitioner’s claims, when

liberally construed, are potentially cognizable in federal court.

Condensed and

summarized for clarity, Petitioner’s claims are:
Claim One:

The trial court imposed an excessive sentence in
violation of Petitioner’s rights under the Fourteenth
Amendment. (Filing No. 8 at ECF 7.)

Claim Two:

Petitioner received the ineffective assistance of trial
counsel because he: (a) instructed Petitioner to “stand
mute” at sentencing; (b) failed to fully discuss the
contents of the presentence investigation report with
Petitioner; (c) failed to correct inaccuracies within the
presentence investigation report; and (d) failed to point
out mitigating factors at sentencing, including a medical
report that reflected Petitioner suffered from a traumatic
brain injury. (Filing No. 8 at ECF 10–11.)

The Court determines that these claims, when liberally construed, are
potentially cognizable in federal court. However, the Court cautions Petitioner 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. Accordingly,

IT IS ORDERED that:
1.

Upon initial review of Petitioner’s amended habeas corpus petition
(Filing No. 8), the Court preliminarily determines that Petitioner’s
claims, as they are 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 amended habeas corpus petition to Respondent
and the Nebraska Attorney General by regular first-class mail.

3.

By December 4, 2015, Respondent 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: December 4, 2015: 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 must be followed by Respondent 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:

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“Designation of State Court Records in Support of Motion for
Summary Judgment.”
C.

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,
Respondent must 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 motion is therefore fully submitted for decision.

F.

5.

Copies of the motion for summary judgment, the designation,
including state court records, and Respondent’s brief must be
served on Petitioner except that Respondent is only required
to provide Petitioner with a copy of the specific pages of the
record that 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 must set forth
the documents requested and the reasons the documents are
relevant to the cognizable claims.

If the motion for summary judgment is denied, Respondent
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. Respondent is 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.

If Respondent elects to file an answer, the following procedures must
be followed by Respondent and Petitioner:
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A.

By December 4, 2015, Respondent 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, Respondent 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 Respondent’s brief
must be served on 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 that 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 must set forth
the documents requested and the reasons the documents are
relevant to the cognizable claims.

D.

No later than 30 days after Respondent’s 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.

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E.

F.

6.

No later than 30 days after Petitioner’s brief is filed,
Respondent must 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.
The clerk of the court is directed to set a pro se case
management deadline in this case using the following text:
January 5, 2016: check for Respondent’s answer and
separate brief.

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 21st day of October, 2015.
BY THE COURT:
s/Laurie Smith Camp
Chief United States District Judge

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