Armendariz v. Frakes

Filing 3

MEMORANDUM AND ORDER - Upon initial review of the petition (Filing No. 1 ), the court preliminarily determines that Petitioner's claim is potentially cognizable in federal court. The clerk of the court is directed to mail copies of this Mem orandum and Order and the petition to Respondent and the Nebraska Attorney General by regular first-class mail. By September 22, 2015, Respondent must file a motion for summary judgment or state court records in support of an answer. The clerk of t he court is directed to set a pro se case management deadline in this case using the following text: September 22, 2015: deadline for Respondent to file state court records in support of answer or motion for summary judgment. If Respondent elects to file an answer, the procedures must be followed by Respondent and Petitioner. The clerk of the court is directed to set a pro se case management deadline in this case using the following text: October 20, 2015: check for Respondent's answer an d 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. Ordered by Chief Judge Laurie Smith Camp. (Copy mailed to pro se party; Order and Petition mailed to Respondent as directed )(GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JONATHON L. ARMENDARIZ,

)
)
Petitioner,
)
)
v.
)
)
SCOTT R. FRAKES, Director of the
)
Nebraska Department of Corrections, )
)
Respondent.
)

8:15CV161

MEMORANDUM
AND ORDER

Petitioner Jonathon Armendariz filed a Petition for Writ of Habeas Corpus (Filing No.
1) (“petition”) on May 4, 2015. Condensed and summarized for clarity, Petitioner asserted
the following claim: Petitioner’s sentence of 90 years to life violates the Eighth
Amendment’s prohibition against cruel and unusual punishment. This claim is potentially
cognizable in federal court. Accordingly,

IT IS ORDERED:
1.

Upon initial review of the petition (Filing No. 1), the court preliminarily
determines that Petitioner’s claim is 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.

3.

By September 22, 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: September 22, 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: “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 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.

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.

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
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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.
5.

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

By September 22, 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.

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D.

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 merits of the petition are
therefore fully submitted for decision.

F.

6.

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.

The clerk of the court is directed to set a pro se case management
deadline in this case using the following text: October 20, 2015:
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 6th day of August, 2015.
BY THE COURT:
s/Laurie Smith Camp
Chief United States District Judge

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