United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge.
matter is before the court on preliminary review of
Petitioner Eric McCain'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 raises the following claim
in his habeas corpus petition: Petitioner's sentence
violates the Eighth Amendment's ban on cruel and unusual
punishment because he was a minor at the time of his offense
and he received a de facto life sentence without a finding of
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 the 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 it is set forth in this Memorandum
and Order, is potentially cognizable in federal court.
October 15, 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: October 15, 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 motion
and brief. In the event that the designation of state court
records is deemed insufficient by Petitioner or Petitioner
needs additional records from the designation, 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 October 15, 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,