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Ildefonso v. Gage

United States District Court, D. Nebraska

January 8, 2014

ARLYN P. ILDEFONSO, Petitioner,
v.
BRIAN GAGE, Warden, Respondent.

MEMORANDUM AND ORDER ON INITIAL REVIEW OF THE AMENDED PETITION FOR WRIT OF HABEAS CORPUS

WARREN K. UBROM, Senior District Judge.

An initial review of the Amended Petition for Writ of Habeas Corpus (Filing No. 13) was conducted to determine whether the claims made by the petitioner, Arlyn P. Ildefonso, ("Ildefonso") are, when liberally construed, potentially cognizable in federal court. Ildefonso has raised 81 claims. Upon careful review of the amended petition, I preliminarily decide that Ildefonso's 81 claims are potentially cognizable in federal court.[1] However, I caution Ildefonso that no determination has been made regarding the merits of these claims or any defenses thereto or whether there are procedural bars that will prevent Ildefonso from obtaining the relief sought.

IT IS THEREFORE ORDERED that:

1. Upon initial review of the Amended Petition for Writ of Habeas Corpus (Filing No. 13), I preliminarily determine that Ildefonso's 81 claims are potentially cognizable in federal court.

2. The clerk's office is directed to mail copies of this memorandum and order and the amended petition (Filing No. 13) to the respondent and the Nebraska Attorney General by regular first-class mail.

3. By February 21, 2014, the respondent shall 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: February 21, 2014: deadline for the respondent to file state court records in support of answer or motion for summary judgment.

4. If the respondent elects to file a motion for summary judgment, the following procedures shall be followed by the respondent and Ildefonso:

A. The motion for summary judgment shall be accompanied by a separate brief, submitted at the time of the filing of the motion.
B. The motion for summary judgment shall be supported by such state court records as are necessary to support the motion. Those records shall 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 the respondent's brief shall be served upon Ildefonso except that the respondent is only required to provide Ildefonso with a copy of the specific pages of the record which are cited in the respondent's brief. In the event that the designation of state court records is deemed insufficient by Ildefonso, Ildefonso may file a motion with the court requesting additional documents. Such motion shall 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, Ildefonso shall file and serve a brief in opposition to the motion for summary judgment. Ildefonso shall submit no other documents unless directed to do so by the court.
E. No later than 30 days after the filing of Ildefonso's brief, the respondent shall file and serve a reply brief. In the event that the 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, the respondent shall file an answer, a designation and a brief that complies with terms of this order. ( See the following paragraph.) The documents shall be filed no later than 30 days after the denial of the motion for summary judgment. The respondent is warned that the failure to file an answer, a designation and a brief in a timely fashion may result in the imposition of sanctions, including the release of Ildefonso.

5. If the respondent elects to file an answer, the following procedures shall be followed by the ...


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