Bewley v. Britten et al

Filing 7

MEMORANDUM AND ORDER that 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 feder al court. By May 5, 2017, 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: May 5, 20 17: deadline for Respondents to file state court 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: June 4, 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. (LAC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
CORY C. BEWLEY,
Petitioner,

8:17CV20

vs.
FRED BRITTEN, and THE
ATTORNEY GENERAL OF THE
STATE OF NEBRASKA,

MEMORANDUM
AND ORDER

Respondents.
This matter is before the court on preliminary review of Petitioner Cory C.
Bewley’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 when trial counsel advised him to plead
guilty to second degree murder despite concluding
eighteen months earlier, based on the same
evidence, that Petitioner is innocent.

Claim Two:

Petitioner is innocent because he acted in selfdefense.

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.
By May 5, 2017, 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: May 5, 2017: deadline for Respondents to file state court records in support
of 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
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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 May 5, 2017, 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
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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, 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:
June 4, 2017: 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.
Dated this 21st day of March, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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