Alvarado v. Hansen

Filing 11

MEMORANDUM AND ORDER that by December 4, 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: December 4, 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 Re spondent 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 management deadline in this case using the following text: January 2, 2018: 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) (LAC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
TELESFORO ALVARADO,
Petitioner,

8:17CV283

vs.
BRAD HANSEN, Warden et. al.;

MEMORANDUM
AND ORDER

Respondent.
This matter is before the court on preliminary review of Petitioner Telesforo
Alvarado’s Petition for Writ of Habeas Corpus (Filing Nos. 1, 5) brought pursuant
to 28 U.S.C. § 2254. Petitioner set forth in his habeas corpus petition that he was
convicted of one count of distribution of a controlled substance within 1000 feet of
a playground on April 11, 2013. Nebraska’s appellate courts upheld his judgment
of conviction on June 4, 2014. (Filing No. 5 at CM/ECF pp.14–15.)
It appears from the face of the petition that Petitioner’s claims may be barred
by the statute of limitations because the petition was filed more than one year after
Petitioner’s judgment became final. See 28 U.S.C. § 2244(d)(1)(A). However, in
order to ensure a just and fair resolution of this matter, the court will enter an order
progressing this case to final resolution. Respondent shall either file a motion for
summary judgment or answer in accordance with the procedures outlined below.
In addressing whether Petitioner’s claims may be barred by the statute of
limitations, Respondent should take care to address Petitioner’s arguments
with respect to impediments to the filing of his petition created by State action
and equitable tolling based on conduct of Petitioner’s appellate counsel. (See
Grounds Eleven and Twelve, Filing No. 5 at CM/ECF pp.57–59.)

IT IS THEREFORE ORDERED that:
1.
By December 4, 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: December 4, 2017: deadline for Respondent to file state court records in
support of answer or motion for summary judgment.
2.
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.

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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.

3.
If Respondent elects to file an answer, the following procedures must
be followed by Respondent and Petitioner:
A.

By December 4, 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.”

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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
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
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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:
January 2, 2018: check for Respondent’s answer and separate
brief.

4.
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 18th day of October, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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