United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge
matter has been stayed pending Petitioner's reinstatement
of his post conviction appeal in state court. (Filing no.
27). Petitioner now advises that on “November
13, 2017 the Nebraska Supreme Court denied Harris[']
Petition for Further Review which, therefore, ends
Harris' State Court Review.” (Filing no.
39.) I have previously identified Petitioner's
claims that are potentially cognizable in federal court.
(Filing no. 9.) As a consequence, this matter is
ready for further progression.
January 18, 2018, 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 18, 2018: deadline for
Respondent to file state court records in support of answer
or motion for summary judgment.
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 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
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 timely fashion may result in
the imposition of sanctions, including Petitioner's
Respondent elects to file an answer, the following procedures
must be followed by Respondent and Petitioner:
A. By January 18, 2018, Respondent must file
all state court records that are relevant to the
cognizable claims. See, e.g., Rule 5(c)-(d)
of the Rules Governing Section 2254 Cases in the United
States District Courts. Those records must be contained
in a separate filing entitled: “Designation of State
Court Records in Support of Answer.”
B. No later than 30 days after the relevant state court
records are filed, Respondent must file an answer. The answer
must be accompanied by a separate brief, submitted at the
time the answer is filed. Both the answer and the brief must
address all matters germane to the case including, but not
limited to, the merits of Petitioner's allegations that
have survived initial review, and whether any claim is barred
by a failure to exhaust state remedies, a procedural bar,
non-retroactivity, a statute of limitations, or because the
petition is an unauthorized ...