Fletcher v. Frakes

Filing 5

ORDER - Upon initial review of the habeas corpus petition (Filing No. 1 ), the court preliminarily determines that Petitioner's claim, as set forth in this Memorandum and Order, is potentially cognizable in federal court. The clerk of the c ourt 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 January 13, 2017, Respondent must file a motion for summary judgment or st ate 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: January 13, 2017: deadline for Respondent to file state court records in support of answe r or motion for summary judgment. If Respondent elects to file an answer, the following procedures must be followed by Respondent and Petitioner: By January 13, 2017, Respondent must file all state court records that are relevant to the cognizable claim. 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." The clerk of the court is directed to set a pro se case management deadline in this case using the following text: February 13, 2017: 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 as directed)(GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
BARRY FLETCHER,
Petitioner,
v.
SCOTT FRAKES,
Respondent.

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8:16CV468

ORDER

This matter is before the court on preliminary review of Petitioner Fletcher’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 claim is:
CLAIM ONE: The habitual offender enhancement under Nebraska law
is used by the Lancaster County Attorney’s office to disproportionately
prosecute African-Americans, at a rate of over 90% compared to white
persons, thereby violating Petitioner’s rights under the Eighth and
Fourteenth Amendments of the Constitution as he is an AfricanAmerican and was sentenced as an habitual offender.
The court determines that this claim, when liberally construed, is potentially
cognizable in federal court. However, the court cautions Petitioner that no
determination has been made regarding the merits of this claim or any defenses to it
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 claim, as set forth in this Memorandum and
Order, is 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 January 13, 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:
January 13, 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.

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 claim.
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 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 January 13, 2017, Respondent must file all state court records
that are relevant to the cognizable claim. 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 claim.

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: February 13, 2017:
check for Respondent’s answer and separate brief.

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 29th day of November, 2016.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge