Crippen v. State of Nebraska et al

Filing 9

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 November 9, 2015, Respondents mus t file a motion for summary judgment or state court records in support of an answer. The clerk of the court is to set a pro se case management deadline in this case using the following text: November 9, 2015: deadline for Respondents to file state co urt 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: December 7, 2015:check for Respondents answer and separate brief. Peti tioner must voluntarily withdraw his habeas corpus petition within 30 days if he does not want this action to proceed as one brought solely pursuant to 28 U.S.C. § 2254. If Petitioner fails to respond to this order, the court will construe Petitioners petition as one solely filed pursuant to 28 U.S.C. § 2254. Ordered by Senior Judge Joseph F. Bataillon. (Copies mailed as directed)(KLF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JERRIMIE G. CRIPPEN,
Petitioner,
v.
STATE OF NEBRASKA, SCOTT
FRAKES, and ROBERT MADSEN,
Respondents.

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8:15CV238

MEMORANDUM
AND ORDER

I. PRELIMINARY REVIEW OF PETITION
This matter is before the court on preliminary review of Petitioner Jerrimie
Crippen’s (“Petitioner”) Petition for Writ of Habeas Corpus (Filing No. 1) (“petition”)
filed on June 29, 2015. Petitioner was convicted of burglary and sentenced as a habitual
criminal on November 13, 2009. (Filing No. 1 at CM/ECF p. 3.) He did not file a
direct appeal. He filed a postconviction action on August 23, 2012. (Filing No. 1 at
CM/ECF p. 4.)
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). However, in order
to ensure a just and fair resolution of this matter, the court will enter an order
progressing this case to final resolution.
II. NOTICE
Petitioner filed this action pursuant to 28 U.S.C. §§ 2241 and 2254. Section 2241
authorizes federal district courts to issue a writ of habeas corpus to a state or federal
prisoner who is in custody in violation of the Constitution or laws or treaties of the

United States. 28 U.S.C. § 2241(c)(3). Section 2254 confers jurisdiction on district
courts to “entertain an application for a writ of habeas corpus in behalf of a person in
custody pursuant to the judgment of a State court only on the ground that he is in
custody in violation of the Constitution or laws or treaties of the United States.” 28
U.S.C. § 2254(a). It is a well-established rule of statutory construction that when two
statutes cover the same situation, the more specific statute takes precedence over the
more general one. See Edmond v. United States, 520 U.S. 651, 657 (1997). A number
of circuit courts have held that Section 2254 and its provisions take precedence over
Section 2241 because it is the more specific statute. See Medberry v. Crosby, 351 F.3d
1049, 1060 (11th Cir. 2003); Cook v. New York State Div. of Parole, 321 F.3d 274, 279,
n.4 (2nd Cir. 2003); Coady v. Vaughn, 251 F.3d 480, 484-85 (3rd Cir. 2001).
Here, it is apparent that Petitioner is challenging his state-court conviction. The
appropriate vehicle for doing so is through a petition for writ of habeas corpus brought
pursuant to 28 U.S.C. § 2254. Therefore, this order serves as notice to Petitioner that
the court intends to construe his petition for writ of habeas corpus as one brought solely
pursuant to 28 U.S.C. § 2254. In the alternative, Petitioner may move to voluntarily
withdraw his habeas corpus petition within 30 days. See Castro v. United States, 540
U.S. 375, 382-83 (2003) (requiring notice, warning, and opportunity to amend or
withdraw before recharacterization of pro se litigant’s motion as initial § 2255 motion;
when these requirements unsatisfied, recharacterized motion not considered § 2255
motion rendering later motion successive); see also Martin v. Overton, 391 F.3d 710,
713 (6th Cir. 2004) (applying Castro to § 2254 petition). Should Petitioner decide to
allow this action to proceed as one brought solely pursuant to Section 2254, he should
be aware of his obligation to raise all of his habeas corpus claims in this action. This
is because there is a statutory prohibition against successive petitions by state prisoners
codified in 28 U.S.C. § 2244.

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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 November 9, 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:
November 9, 2015: deadline for Respondents to file state court records in support of
answer or motion for summary judgment.
3.
If Respondents elects 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
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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.

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

By November 9, 2015, Respondents must file all state court
records that are relevant to the cognizable claims. See, e.g., Rule
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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 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.
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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, 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.

The clerk of the court is directed to set a pro se case management
deadline in this case using the following text: December 7, 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.
6.
Petitioner must voluntarily withdraw his habeas corpus petition within 30
days if he does not want this action to proceed as one brought solely pursuant to 28
U.S.C. § 2254. If Petitioner fails to respond to this order, the court will construe
Petitioner’s petition as one solely filed pursuant to 28 U.S.C. § 2254.
DATED this 29th day of September, 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 provide
on their Web sites. Likewise, the court has no agreements with any of these third parties or their Web sites. The court
accepts no responsibility for the availability or functionality of any hyperlink. Thus, the fact that a hyperlink ceases to work
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