Storovich v. Raemisch

Filing 16

MEMORANDUM AND ORDER Petitioner's motion to substitute respondent (See Filing No. 12 ) is granted. The clerk's office is directed to update the court's records to reflect that Grant County, Nebraska and the State of Nebraska are t he named respondents in this action. The clerk of court is further directed to send a copy of this order to Rich Raemisch and the Nebraska Attorney General. By August 8, 2016, Respondents must file a motion for summary judgment or state court record s 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: August 8, 2016: deadline for Respondents to file state court records in support of answer or motion for sum mary judgment. If Respondents elect to file a motion for summary judgment, the following procedures must be followed by Respondents and Petitioner. If Respondents elect to file an answer, the following procedures must be followed by Respondents and Petitioner. The clerk of the court is directed to set a pro se case management deadline in this case using the following text: September 7, 2016: check for Respondents' 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. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party and Copy mailed as directed)(LAC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JERRY STOROVICH,

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)
Petitioner,
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)
V.
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RICK RAEMISCH, Executive )
Director,
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Respondent.
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)

8:16CV24

MEMORANDUM
AND ORDER

This matter is before the court on Petitioner Jerry Storovich’s Petition for Writ
of Habeas Corpus brought pursuant to 28 U.S.C. § 2254, in which he alleges
violations of the speedy trial provisions of the Interstate Agreement on Detainers.
Liberally construed, Petitioner claims that Grant County and the State of
Nebraska have attempted to circumvent the speedy trial provisions of the
Interstate Agreement on Detainers by refusing to formally, and in good faith,
lodge a detainer with Colorado authorities. Petitioner also contends that he
attempted to exhaust his state court remedies by filing a motion for relief in the
District Court of Grant County, but that he was prevented from appealing the
denial of his motion by the clerk of Grant County.
Petitioner, who is currently incarcerated in Colorado, named Rich Raemisch as
the respondent in this case. Mr. Raemisch is the Executive Director of the Colorado
Department of Corrections.
On February 24, 2016, after conducting an initial review of Petitioner’s habeas
petition, the court issued an order directing Respondent to (1) file a motion for
summary judgment or state court records in support of an answer by April 11, 2016
or (2) file an answer, including all state court records that are relevant to the claims
by April 11, 2016. (Filing No. 7.) The court directed the clerk of court to send a copy

of the order to Respondent and the Nebraska Attorney General.
On February 26, 2016, the Nebraska Attorney General filed a response to the
court’s order, stating “although there are no Nebraska respondents in this case, it is
our hope that the investigation into this matter, conducted by telephone with Colorado
officials and Nebraska officials, will aid the Court in determining the current status
of [Petitioner] who is a prisoner in Colorado.” (Filing No. 8 at CM/ECF p. 1.) The
Attorney General’s filing also attempted to provide some basic information regarding
the events underlying Petitioner’s habeas petition. The information provided by the
Attorney General is, however, insufficient for the court to resolve this matter.
Moreover, the named Respondent has not formally submitted a response to the
petition.
In any event, Petitioner filed a response to the Attorney General’s submission,
in which he requested that the name of the respondent be changed from Rich
Raemisch to “Grant County and the State of Nebraska.” (Filing No. 12 at CM/ECF
p. 1.) The court will construe this request as a motion to substitute respondent. The
motion will be granted.
IT IS THEREFORE ORDERED:
1.
Petitioner’s motion to substitute respondent (See Filing No. 12) is
granted. The clerk’s office is directed to update the court’s records to reflect that
Grant County, Nebraska and the State of Nebraska are the named respondents in this
action. The clerk of court is further directed to send a copy of this order to Rich
Raemisch and the Nebraska Attorney General.
2.
By August 8, 2016, 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:
August 8, 2016: deadline for Respondents to file state court records in support of
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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.

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
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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 August 8, 2016, 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,
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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
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: September 7, 2016:
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 23rd day of June, 2016.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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