United States District Court, D. Nebraska
KEVIN L. ALLEN, Petitioner,
SCOTT FRAKES, Director NDCS; Respondent.
MEMORANDUM AND ORDER
Richard G. Kopf, Senior United States District Judge.
matter is before the court on preliminary review of
Petitioner Kevin L. Allen's Petition for Writ of Habeas
Corpus (Filing No. 1) brought pursuant to 28 U.S.C.
§ 2254. Petitioner set forth in his habeas corpus
petition that he was convicted of murder in the first degree
and use of a firearm to commit a felony on May 6, 1996. The
Nebraska Supreme Court upheld his judgment of conviction on
March 28, 1997. (Filing No. 1 at CM/ECF pp. 1-2.)
appears from the face of the petition that Petitioner's
claims may be barred by the statute of limitations because
the petition was filed more than one year after
Petitioner's judgment became final. See 28
U.S.C. § 2244(d)(1)(A). However, in order to ensure a
just and fair resolution of this matter, the court will enter
an order progressing this case to final resolution.
THEREFORE ORDERED that:
December 12, 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 12, 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 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 December 12, 2019, 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: ...