Ellis v. Hansen
Filing
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MEMORANDUM AND ORDER - Upon initial review of the Amended Petition (Filing No. 8 ), the court preliminarily determines that Petitioner's claims are potentially cognizable in federal court. By April 14, 2017, Respondent must file a motion for su mmary 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: April 14, 2017: deadline for Respondent to file state court records in s upport 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: May 15, 2017: check for Respondent's 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) (KLF)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ROY L. ELLIS,
Petitioner,
v.
BRAD HANSEN, Warden,
Respondent.
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8:16CV549
MEMORANDUM
AND ORDER
The court has conducted an initial review of the Amended Petition for Writ of
Habeas Corpus (Filing No. 8) to determine whether the claims made by Petitioner are,
when liberally construed, potentially cognizable in federal court. It appears Petitioner
has made two claims.
Condensed and summarized for clarity, the claims asserted by Petitioner are:
Claim One:
Counsel on direct appeal was ineffective for failing
to seek further review by the Nebraska Supreme
Court of the denial of the direct appeal by the Court
of Appeals.
Claim Two:
Petitioner was denied due process of law by the trial
court because (1) Petitioner was not properly
informed that his “no contest” plea could result in an
enhanced sentence as a habitual offender, and (b) the
trial judge referred to, and improperly relied upon, a
pending and, in any event unrelated, murder and rape
charge of a child brought against Petitioner as a basis
for sentencing.1
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All other “grounds” are dismissed with prejudice because they are
unintelligible or do not state federal claims. At the briefing stage, the Petitioner may
provide excuses for lack of exhaustion or procedural default, but these are not “stand
Liberally construed, the court preliminarily decides that Petitioner’s claims are
potentially cognizable in federal court. However, the court cautions that no
determination has been made regarding the merits of these claims or any defenses
thereto 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 Amended Petition (Filing No. 8), the court
preliminarily determines that Petitioner’s claims are potentially cognizable in federal
court.
2.
By April 14, 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:
April 14, 2017: deadline for Respondent to file state court records in support of
answer or motion for summary judgment.
3.
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
alone” federal claims. Finally, and to reiterate, this petition does not attack
Petitioner’s separate conviction, and death sentence, for the murder of Amber Harris.
See State v. Ellis, 799 N.W.2d 267 (Neb. 2011) (affirming conviction and death
penalty).
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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 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
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an answer, a designation and a brief in a timely fashion may
result in the imposition of sanctions, including Petitioner’s
release.
4.
If Respondent elects to file an answer, the following procedures must be
followed by Respondent and Petitioner:
A.
By April 14, 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 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
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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: May 15, 2017:
check for Respondent’s 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.
DATED this 28th day of February, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge
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