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 David Ivey'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:
One: Petitioner was denied a fair hearing, due process of
law, and equal protection at his July 13, 2017 review hearing
conducted pursuant to the Sex Offender Commitment Act
(“SOCA”), Neb. Rev. Stat. §§ 71-1201 to
71-1226, because (1) he was not permitted to challenge the
sufficiency of evidence supporting his commitment as a
dangerous sex offender and (2) the State of Nebraska did not
present sufficient evidence to support an order of
Two: The Norfolk Regional Center's discharge criteria
requiring Petitioner to make a direct or indirect admission
of guilt to unproven and acquitted allegations before he is
allowed his liberty violates Petitioner's rights under
the Fifth Amendment and fall outside the scope of SOCA.
Three: SOCA is unconstitutional as applied to Petitioner.
Four: Petitioner was denied due process of law because the
2017 order of commitment issued by the Mental Health Board of
the Fourth Judicial District relied upon the unlawful 2006
order of commitment and is, therefore, void.
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
December 9, 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: December 9, 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 ...