Allee v. Warden of USP McCreary et al
Filing
9
MEMORANDUM AND ORDER - 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 cou rt. By May 18, 2018, 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 18, 2018: 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 18, 2018: check for Respondents' answer and separate brief. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (KLF)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JUSTIN JAMES ALLEE,
Petitioner,
8:17CV455
vs.
WARDEN OF USP MCCREARY, and
STATE OF NEBRASKA,
MEMORANDUM
AND ORDER
Respondents.
This matter is before the court on preliminary review of Petitioner Justin
James Allee’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 raises the following claim
in his habeas corpus petition: Petitioner’s sentence is unconstitutional under the
United States Supreme Court’s holding in Miller v. Alabama, 567 U.S. 460 (2012),
because the sentencing court did not consider the fact that Petitioner was a juvenile
at the time of the commission of the crime for which he was convicted.
The court determines that this claim, when liberally construed, is potentially
cognizable in federal court. However, the court cautions Petitioner that no
determination has been made regarding the merits of the claim or any defenses to it
or whether there are procedural bars that will prevent Petitioner from obtaining the
relief sought.1
1
Among other things, the court has serious questions regarding whether the petition is
barred by the statute of limitations, whether Miller v. Alabama is even applicable to Petitioner’s
sentence, and whether this is a second or successive habeas petition for which Petitioner is
required to obtain permission to file from the Eighth Circuit Court of Appeals. See 28 U.S.C. §
2244(b)(3), (d).
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 18, 2018, 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 18, 2018: 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’ motion and brief. In the
event that the designation of state court records is deemed
insufficient by Petitioner or Petitioner needs additional records
from the designation, Petitioner may file a motion with the
2
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,
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 18, 2018, 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
3
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, 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’ answer and brief. In the
event that the designation of state court records is deemed
insufficient by Petitioner or Petitioner needs additional records
from the designation, 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
4
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,
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 18, 2018: 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 3rd day of April, 2018.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge
5
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?