Gallegos-Palafox v. Hansen

Filing 9

MEMORANDUM AND ORDER - Upon initial review of the habeas corpus petition (Filing No. 1 ), the court preliminarily determines that Petitioner's claims, as they are set forth in this Memorandum and Order, are potentially cognizable in federal court. The clerk of the court is directed to mail copies of this Memorandum and Order and the habeas corpus petition to Respondent and the Nebraska Attorney General by regular first-class mail. By March 30, 2017, 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: March 30, 2017: deadline for Respondent to file state court record s in support of answer or motion for summary judgment. If Respondent elects to file a motion for summary judgment, the following procedures must be followed by Respondent and Petitioner. If Respondent elects to file an answer, the following procedur es 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: April 29, 2017: check for Respondent's answer and separate brief. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party and as directed)(LAC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
AURELIO GALLEGOS-PALAFOX,
Petitioner,

8:16CV291

vs.
MEMORANDUM
AND ORDER

BRAD HANSEN,
Respondent.

This matter is before the court on preliminary review of Petitioner Aurelio
Gallegos-Palafox’s Petition for Writ of Habeas Corpus (Filing No. 1) 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:

Petitioner was denied effective assistance of
counsel because counsel failed to raise on direct
appeal the sufficiency of the factual basis to
support his plea.

Claim Two:

Petitioner was denied effective assistance of
counsel because counsel failed to raise on direct
appeal the following claims of ineffective
assistance of trial counsel: (1) trial counsel failed
to advise Petitioner that consent was a defense; (2)
trial counsel advised Petitioner to waive
preliminary hearing; (3) trial counsel advised
Petitioner to plead guilty without first
investigating; and (4) trial counsel advised
Petitioner to plead guilty despite proof of consent.

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.
IT IS THEREFORE ORDERED that:
1.

Upon initial review of the habeas corpus petition (Filing No. 1), 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 habeas corpus petition to Respondent and the
Nebraska Attorney General by regular first-class mail.

3.

By March 30, 2017, 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: March 30, 2017: 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.

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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
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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.
5.

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

By March 30, 2017, 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
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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.

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.

The clerk of the court is directed to set a pro se case
management deadline in this case using the following text:
April 29, 2017: check for Respondent’s answer and separate
brief.

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6.

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 13th day of February, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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