Ware v. Frakes

Filing 7

MEMORANDUM AND ORDER - By September 5, 2017, Respondent must file a motion for summary judgment or state court records in support of an answer. Ordered by Magistrate Judge Cheryl R. Zwart. (KLF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
DAVID WARE,
Petitioner,
v.
SCOTT R. FRAKES,
Respondent.

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8:17CV85

MEMORANDUM
AND ORDER

This matter is before the court on the Petition for Writ of Habeas Corpus
(Filing No. 1) filed by David Ware (“Petitioner”) on March 20, 2017. To ensure a
just and fair resolution of this matter, the court will enter an order progressing this
case to final resolution.
IT IS THEREFORE ORDERED that:
1.
By September 5, 2017, Respondent must file a motion for summary
judgment or state court records in support of an answer.
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 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 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:

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A.

By September 5, 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 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

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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.

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.
July 18, 2017.

BY THE COURT:
s/ Cheryl R. Zwart
United States Magistrate Judge

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