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Green v. Frakes

United States District Court, D. Nebraska

September 28, 2015

ANTHONY D. GREEN, Petitioner,
v.
SCOTT R. FRAKES, Respondent.

MEMORANDUM AND ORDER

LAURIE SMITH CAMP CHIEF UNITED STATES DISTRICT JUDGE

I. PRELIMINARY REVIEW OF PETITION

This matter is before the Court on preliminary review of Petitioner Anthony Green’s (“Petitioner”) Petition for Writ of Habeas Corpus (Filing No. 1) (“petition”) filed on April 15, 2015. Petitioner was convicted of first-degree assault and use of a deadly weapon to commit a felony in the District Court of Douglas County, Nebraska. He was sentenced to “an aggregated term” of imprisonment of 35 to 50 years on July 13, 2012. (Filing No. 1 at ECF 4.) Green did not file a direct appeal. (Filing No. 1 at ECF 3.) He filed a postconviction action on June 28, 2013, and it concluded on December 24, 2014. (Filing No. 1 at ECF 3-4.)

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 conviction became final. See 28 U.S.C. § 2244(d)(1). 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.

II. NOTICE

Petitioner filed this action pursuant to 28 U.S.C. §§ 2241 and 2254. Section 2241 authorizes federal district courts to issue a writ of habeas corpus to a state or federal prisoner who is in custody in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2241(c)(3). Section 2254 confers jurisdiction on district courts to “entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). It is a well-established rule of statutory construction that when two statutes cover the same situation, the more specific statute takes precedence over the more general one. See Edmond v. United States, 520 U.S. 651, 657 (1997). A number of circuit courts have held that Section 2254 and its provisions take precedence over Section 2241 because it is the more specific statute. See Medberry v. Crosby, 351 F.3d 1049, 1060 (11th Cir. 2003); Cook v. New York State Div. of Parole, 321 F.3d 274, 279, n.4 (2nd Cir. 2003); Coady v. Vaughn, 251 F.3d 480, 484-85 (3rd Cir. 2001).

Here, it is apparent that Petitioner is challenging his state-court conviction. The appropriate vehicle for doing so is through a petition for writ of habeas corpus brought pursuant to 28 U.S.C. § 2254. Therefore, this order serves as notice to Petitioner that the Court intends to construe his petition for writ of habeas corpus as one brought solely pursuant to 28 U.S.C. § 2254. In the alternative, Petitioner may move to voluntarily withdraw his habeas corpus petition within 30 days. See Castro v. United States, 540 U.S. 375, 382-83 (2003) (requiring notice, warning, and opportunity to amend or withdraw before recharacterization of pro se litigant’s motion as initial § 2255 motion; when these requirements are unsatisfied, the recharacterized motion is not considered a § 2255 motion, rendering later motion successive); see also Martin v. Overton, 391 F.3d 710, 713 (6th Cir. 2004) (applying Castro to § 2254 petition). Should Petitioner decide to allow this action to proceed as one brought solely pursuant to Section 2254, he should be aware of his obligation to raise all of his habeas corpus claims in this action. This is because there is a statutory prohibition against successive petitions by state prisoners codified in 28 U.S.C. § 2244. Accordingly, IT IS ORDERED that:

1. The clerk of the court is directed to mail copies of this Memorandum and Order and the habeas corpus petition to Respondent and the Nebraska Attorney General by regular first-class mail.

2. By November 9, 2015, 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: November 9, 2015: deadline for Respondent to file state court records in support of answer or motion for summary judgment.

3. 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.
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 ...

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