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Phillips v. Gage

United States District Court, D. Nebraska

March 8, 2016

TYRESE A. PHILLIPS, Petitioner,
v.
BRIAN GAGE, Respondent.

MEMORANDUM AND ORDER

RICHARD G. KOPF SENIOR UNITED STATE DISTRICT JUDGE

This matter is before the court on preliminary review of Petitioner’s Amended Petition for Writ of Habeas Corpus (Filing No. 6) 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’s single claim is this: He was denied his Constitutional right to compulsory process and due process when the trial court allowed the witness Weakly to invoke the Fifth Amendment to avoid testifying.

As noted earlier, Petitioner’s claim about the law library cannot be brought in this § 2254 action. I will, however, consider that assertion if in the briefing it appears that Petitioner is alleging equitable tolling for statute of limitations purposes or as an excuse for a procedural default. Petitioner and Respondent should address these matters also in their briefs.

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

IT IS THEREFORE ORDERED that:

1. Upon initial review of the habeas corpus petition (Filing No. 6), 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 habeas corpus petition to Respondent and the Nebraska Attorney General by regular first-class mail.

3. By April 25, 2016, 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: April 25, 2016: 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 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 brief and that the motion is therefore fully submitted for decision.
F. If the motion for summary judgment is denied, Respondent 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. Respondent is warned that failure to file an answer, a designation and a brief in a ...

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