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Cook v. Kenney

United States District Court, D. Nebraska

April 17, 2014

TODD L. COOK, Petitioner,
v.
MICHAEL KENNEY, Director, and DIANE SABATKA-RINE, Warden, Respondents.

MEMORANDUM AND ORDER

RICHARD G. KOPF, Senior District Judge.

I. INITIAL REVIEW OF HABEAS CORPUS PETITION

Petitioner has filed a Petition for Writ of Habeas Corpus. (Filing No. 1.) The court has conducted an initial review of the Petition for Writ of Habeas Corpus to determine whether the claims made by Petitioner are, when liberally construed, potentially cognizable in federal court. Condensed and summarized for clarity, Petitioner has asserted one claim: Petitioner was sentenced to a mandatory term of life imprisonment when he was a minor in violation of the Eighth Amendment.

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 the claim or any defenses to it or whether there are procedural bars that will prevent Petitioner from obtaining the relief sought.

II. MOTION FOR STAY

Petitioner has filed a motion to stay this matter because he has filed "a subsequent Motion for Postconviction Relief in State Court." (Filing No. 5 at CM/ECF p. 1.) A stay and abeyance of a federal habeas corpus petition is only appropriate in "limited circumstances." Rhines v. Weber , 544 U.S. 269, 277 (2005). A court may order a stay and abeyance only when there is good cause for the petitioner's failure to exhaust his claims in state court, the claims are not "plainly meritless, " and the petitioner has not "engaged in intentionally dilatory litigation tactics." Id. at 277-278.

Here, Petitioner did not address whether the claim he has raised in his habeas corpus petition is unexhausted in state court and, if so, whether there is "good cause" for failure to exhaust the claim in state court. The court will not grant a stay of this matter based solely on Petitioner's statement that he has filed a "subsequent" motion for post-conviction relief in state court. Accordingly, his motion for a stay will be denied without prejudice to reassertion.

IT IS THEREFORE ORDERED that:

1. Upon initial review of the habeas corpus petition (Filing No. 1), the court preliminarily determines that Petitioner's claim, as set forth in this Memorandum and Order, is potentially cognizable in federal court.

2. The Clerk of the court is directed to mail copies of this memorandum and order and the petition to Respondent and the Nebraska Attorney General by regular first-class mail.

3. By June 2, 2014, 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: June 2, 2014: deadline for Respondent to file state court records in support of answer or motion for summary judgment.

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

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 ...

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