United States District Court, D. Nebraska
Richard G. Kopf, Senior United States District Judge
matter is before the court on preliminary review of
Petitioner Fletcher'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's claim is:
CLAIM ONE: The habitual offender enhancement under Nebraska
law is used by the Lancaster County Attorney's office to
disproportionately prosecute African-Americans, at a rate of
over 90% compared to white persons, thereby violating
Petitioner's rights under the Eighth and Fourteenth
Amendments of the Constitution as he is an African-American
and was sentenced as an habitual offender.
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.
THEREFORE ORDERED that:
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.
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
January 13, 2017, 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: January 13, 2017: deadline for Respondent to file state
court records in support of answer or motion for summary
Respondent elects to file a motion for summary judgment, the
following procedures must be followed by Respondent and
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 claim.
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
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 ...