Alarcon-Chavez v. The State of Nebraska et al

Filing 21

MEMORANDUM AND ORDER - that Petitioner's motion (filing no. 20 ) is granted to the extent that the court acknowledges that dismissal of Petitioner's habeas petition as a successive petition is not at issue in this proceeding. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (LKO)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
LEODAN ALARCON-CHAVEZ,
Petitioner,
vs.
THE STATE OF NEBRASKA, and
SCOTT FRAKES, Director of the
Nebraska Department of Corrections;

8:17CV345
MEMORANDUM
AND ORDER

Respondents.
This matter is before the court on Petitioner’s motion (filing no. 20) asking
this court to issue an order requiring Respondents to correct the following
statement in their Reply Brief (filing no. 19): “Respondent respectfully requests
that this Court dismiss the instant petition for lack of jurisdiction because the
United States Court of Appeals for the Eighth Circuit has not authorized the filing
of the petition.” (Id. at CM/ECF p. 2.) Petitioner asserts that the statement is
misleading because his petition is not a second or successive habeas petition.
Upon review of the statement at issue within the context of Respondents’
arguments in both their Reply Brief and initial Brief in Support of Answer (filing
no. 13), the court believes the statement is a typographical error rather than a
deliberate attempt to mislead the court. Respondents have addressed the merits of
Petitioner’s habeas claims in their briefing and nowhere have they contended, apart
from the lone statement at issue, that Petitioner’s habeas petition is barred as a
second or successive petition. However, the court will grant Petitioner’s motion to
the extent that the court recognizes that the “successiveness” of Petitioner’s habeas
petition is not at issue. Accordingly,

IT IS ORDERED that Petitioner’s motion (filing no. 20) is granted to the
extent that the court acknowledges that dismissal of Petitioner’s habeas petition as
a successive petition is not at issue in this proceeding.
Dated this 31st day of August, 2018.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

2