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 Justin Gardner'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 claims are:
Regarding State v. Gardner, CR18-289 in the District
Court of Lancaster County, Nebraska, only, (a) any
statements taken from Gardner by state actors, whether on
November 17, 2018, or otherwise, were involuntary within the
meaning of the Fifth Amendment and therefore were improperly
used to convict Gardner; and (b) to the extent that legal
documents held by Gardner were seized from him on November
17, 2017, and subsequently used in evidence against Gardner,
such use violated the Fourth and Fifth
court determines that these claims, when liberally construed,
are potentially cognizable in federal court. However, the
court cautions Petitioner that no determination has been made
regarding the merits of these claims or any defenses to them
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
claims, as they are set forth in this Memorandum and Order,
are potentially cognizable in federal court.
April 1, 2019, 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 1, 2019: 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 ...