Clark v. The State of Nebraska

Filing 7

MEMORANDUM AND ORDER that upon initial review of the Petition (Filing No. 1 ), the court preliminarily determines that Petitioner's claim is potentially cognizable in federal court. By October 13, 2017, Respondent must file a motion for summa ry 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: October 13, 2017: deadline for Respondent to file state court records 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 procedures must be followed by Respondent and Petitioner. The clerk of the court is directed to set a pro se case managementdeadline in this case using the following text: November 13, 2017: check forRespondent's answer and separate brief. No discovery shall be undertaken without leave of the court. See Rule 6of 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) (LAC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JEROME M. CLARK,
Petitioner,
v.
THE STATE OF NEBRASKA,
Respondent.

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8:17CV247

MEMORANDUM
AND ORDER

The court has conducted an initial review of the Petition for Writ of Habeas
Corpus (Filing No. 1) to determine whether the claims made by Petitioner are, when
liberally construed, potentially cognizable in federal court. It appears Petitioner has
made one claim.
Condensed and summarized for clarity, the claim asserted by Petitioner is:
Claim One: The Petitioner’s right to due process of law has been
violated because the Nebraska Department of Corrections has improperly
increased his time in prison or interfered with his timely release as more
specifically set forth at pages 1-2 of the petition without providing the
petitioner with an explanation1.
Liberally construed, the court preliminarily decides that Petitioner’s claim is
potentially cognizable in federal court. However, the court cautions that no
determination has been made regarding the merits of these claims or any defenses

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See Jensen v. Satran, 651 F.2d 605, 607 (8th Cir. 1981). To the extent
Petitioner raises related state law claims, the petition to that extent is dismissed with
prejudice as this court has no authority to address those state law claims in a federal
habeas corpus action.

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 Petition (Filing No. 1), the court preliminarily
determines that Petitioner’s claim is potentially cognizable in federal court.
2.
By October 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:
October 13, 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 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
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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:
A.
By October 13, 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,
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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 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: November 13, 2017: check for
Respondent’s answer and separate brief.

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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 29th day of August, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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