McPherson v. Frakes

Filing 3

MEMORANDUM AND ORDER regarding Petition for Writ of Habeas Corpus 1 . By September 22, 2015, Respondents must file a motion for summary judgment or state court records in support of an answer. 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. (Copies mailed as directed and to pro se party)(SLP)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ROGER MCPHERSON,
Petitioner,
v.
SCOTT R. FRAKES, and MICHAEL
KENNEY,
Respondents.

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8:15CV162

MEMORANDUM
AND ORDER

This matter is before the Court on preliminary review of Petitioner Roger
McPherson’s (“Petitioner”) Petition for Writ of Habeas Corpus (Filing No. 1) (“petition”) filed
on May 4, 2015. Petitioner set forth that he was convicted of two counts of first degree
sexual assault on a child and two counts of felony child abuse in the District Court of
Lancaster County, Nebraska. He was sentenced to 50 to 80 years’ imprisonment on
January 24, 2002. The Nebraska Supreme Court affirmed Petitioner’s conviction on direct
appeal on September 12, 2003. Petitioner filed a postconviction action 10 years later. (Id.
at ECF 1-3.)
It appears from the face of the petition that Petitioner’s claims may be barred by the
statute of limitations because the petition was filed more than one year after Petitioner’s
conviction became final. 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. Accordingly,

IT IS ORDERED:
1.

The Clerk of the Court is directed to mail copies of this Memorandum and

Order and the petition to Respondents and the Nebraska Attorney General by regular
first-class mail.
2.

By September 22, 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
22, 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

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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.

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.

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4.

If Respondents elect to file an answer, the following procedures must be

followed by Respondents and Petitioner:
A.

By September 22, 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 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

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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 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 20, 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 .

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DATED this 6th day of August, 2015.
BY THE COURT:
s/Laurie Smith Camp
Chief United States District Judge

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