Harden v. Britten et al

Filing 8

MEMORANDUM AND ORDER- Upon initial review of the Petition (Filing No. 1 ), the court preliminarily determines that Petitioners claims, as set forth in this Memorandum and Order, are potentially cognizable in federal court; The Clerk of the court is directed to mail copies of this Memorandum and Order and the Petition to Respondents and the Nebraska Attorney General by regular first-class mail; By September 9, 2011, Respondents shall file a motion for summary judgment or state court records in s upport 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: September 9, 2011: deadline for Respondents to file state court records in support of answer or motion for summary judgment; If Respondents elect to file a motion for summary judgment, the procedures set forth within the order shall be followed by Respondents and Petitioner. No discovery shall be undertaken without leave of the court. See Rule 6 of the Rules Governing Section 2254 Cases in the United States District Courts. and Petitioners Motion to Appoint Counsel (Filing No. 6 ) is denied. Ordered by Judge Laurie Smith Camp. (Copy mailed to pro se party and as directed)(MKR, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ROBERT HARDEN,
Petitioner,
v.
FRED BRITTEN, Warden, and
ROBERT HOUSTON, Director of the
Department of Corrections,
Respondents.

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CASE NO. 4:11CV3084

MEMORANDUM
AND ORDER

The court has conducted an initial review of the Petition for Writ of Habeas Corpus
(Filing No. 1) to determine whether the claims made by Petitioner are, when liberally
construed, potentially cognizable in federal court. Petitioner has made three claims.
Condensed and summarized for clarity, the claims asserted by Petitioner are:
Claim One:

Petitioner was denied due process of law in violation of
the Fourteenth Amendment because the State failed to
prove beyond a reasonable doubt that Petitioner was
not “entrapped” and the evidence was insufficient to find
him guilty.

Claim Two:

Petitioner was denied the effective assistance of
counsel in violation of the Sixth Amendment because
his trial counsel did not (1) defend Petitioner to the best
of her abilities; (2) object to the personal opinion of a
witness offered at trial; (3) move for a mistrial when the
State called Petitioner a “stone cold killer;” (4) move for
a judgment of not guilty; (5) move for a new jury
selection due to bias of jurors; (6) advise petitioner of
his right not to testify; (7) appeal the denial of motion to
change venue; (8) bring to the attention of the judge
that one of the witnesses was being coached; (9)
introduce at trial the Domestic Violence Protection
Order filed by Petitioner against his wife; (10) argue the
State used the wrong criminal record of the wrong
person with the same name; (11) argue that a grand
jury indictment was needed to charge Petitioner; (12)
argue that instructions for mitigation and aggravating

circumstances were not given; (13) inform Petitioner of
any plea bargains offered by the court; (14) subpoena
certain telephone conversations between Petitioner and
his wife; (15) file a motion for mental evaluation; and
(16) impeach three of the State’s witnesses.
Claim Three:

Petitioner was denied the effective assistance of
counsel in violation of the Sixth Amendment because
his appellate counsel failed to insist on oral argument
and did not raise the following issues on appeal: (1)
trial counsel’s failure to seek a mental evaluation of
Petitioner; (2) the different types of entrapment; (3) the
FBI’s knowledge of Petitioner’s marital problems; (4)
trial counsel’s “weak” argument that State’s witness
“Brent Redden was the only contact between the
Petitioner and the ‘HIT-MAN;’” (5) the conflicts in the
State’s witness testimony; (6) the claims of abuse made
by State’s witness Amber Harden were unfounded; (7)
trial counsel’s refusal to subpoena witnesses from
Petitioner’s home state of Kentucky; (8) that the two
alleged victims did not testify against Petitioner.

Liberally construed, the court preliminarily decides that all three of Petitioner’s
claims are potentially cognizable in federal court. The court cautions, however, that no
determination has been made regarding the merits of these claims or any defenses thereto
or whether there are procedural bars that will prevent Petitioner from obtaining the relief
sought.
Petitioner also seeks the appointment of counsel. (Filing No. 6.) “There is neither
a constitutional nor statutory right to counsel in habeas proceedings; instead, [appointment]
is committed to the discretion of the trial court.” McCall v. Benson, 114 F.3d 754, 756 (8th
Cir. 1997). As a general rule, counsel will not be appointed unless the case is unusually
complex or the petitioner’s ability to investigate and articulate the claims is unusually
impaired or an evidentiary hearing is required. See, e.g., Morris v. Dormire, 217 F.3d 556,
558-59 (8th Cir. 2000), cert. denied, 531 U.S. 984 (2000); Hoggard v. Purkett, 29 F.3d 469,
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471 (8th Cir. 1994) (citations omitted). See also Rule 8(c) of the Rules Governing Section
2254 Cases in the United States District Courts (requiring appointment of counsel if an
evidentiary hearing is warranted.) The court has carefully reviewed the record and finds
that there is no need for the appointment of counsel at this time.
IT IS THEREFORE ORDERED that:
1.

Upon initial review of the Petition (Filing No. 1), the court preliminarily
determines that Petitioner’s claims, as set forth in this Memorandum and
Order, are potentially cognizable in federal court;

2.

The Clerk of the court is directed to mail copies of this Memorandum and
Order and the Petition to Respondents and the Nebraska Attorney General
by regular first-class mail;

3.

By September 9, 2011, Respondents shall 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: September 9, 2011: deadline for Respondents to file
state court records in support of answer or motion for summary judgment;

4.

If Respondents elect to file a motion for summary judgment, the following
procedures shall be followed by Respondents and Petitioner:
A.

The motion for summary judgment shall be accompanied by a
separate brief, submitted at the time of the filing of the motion.

B.

The motion for summary judgment shall be supported by such state
court records as are necessary to support the motion. Those records
shall 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 Respondents’ brief shall be served
upon Petitioner except that Respondents are only required to provide
Petitioner with a copy of the specific pages of the record which are
cited in Respondents’ 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 shall set forth the documents requested and the reasons the
documents are relevant to the cognizable claims.
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D.

E.

No later than 30 days after the filing of Petitioner’s brief, Respondents
shall file and serve a reply brief. In the event that Respondents elect
not to file a reply brief, they should inform the court by filing a notice
stating that they will not file a reply brief and that the motion is
therefore fully submitted for decision.

F.

5.

No later than 30 days following the filing of the motion for summary
judgment, Petitioner shall file and serve a brief in opposition to the
motion for summary judgment. Petitioner shall submit no other
documents unless directed to do so by the court.

If the motion for summary judgment is denied, Respondents shall file
an answer, a designation and a brief that complies with terms of this
order. (See the following paragraph.) The documents shall be filed no
later than 30 days after the denial of the motion for summary
judgment. Respondents are warned that the failure to file an
answer, a designation and a brief in a timely fashion may result
in the imposition of sanctions, including the release of Petitioner;

If Respondents elect to file an answer, the following procedures shall be
followed by Respondents and Petitioner:
A.

By September 9, 2011, Respondents shall file all state court records
which 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 shall be contained in a separate filing
entitled: “Designation of State Court Records In Support of Answer.”

B.

No later than 30 days after the filing of the relevant state court
records, Respondents shall file an answer. The answer shall be
accompanied by a separate brief, submitted at the time of the filing of
the answer. Both the answer and brief shall 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 second or successive petition. See,
e.g., Rules 5(b) and 9 of the Rules Governing Section 2254 Cases in
the United States District Courts.

C.

Copies of the answer, the designation, and Respondents’ brief shall
be served upon Petitioner at the time they are filed with the court
except that Respondents are only required to provide Petitioner with
a copy of the specific pages of the designated record which are cited
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in Respondents’ 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
shall 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 Respondents’ brief,
Petitioner shall file and serve a brief in response. Petitioner shall
submit no other documents unless directed to do so by the court.

E.

No later than 30 days after the filing of Petitioner’s brief, Respondents
shall file and serve a reply brief. In the event that Respondents elect
not to file a reply brief, they should inform the court by filing a notice
stating that they will not file a reply brief and that the merits of the
petition are therefore fully submitted for decision.

F.

The Clerk of the court is directed to set a pro se case management
deadline in this case using the following text: October 11, 2011: check
for Respondents to file answer and separate brief.

6.

No discovery shall be undertaken without leave of the court. See Rule 6 of
the Rules Governing Section 2254 Cases in the United States District
Courts.; and

7.

Petitioner’s Motion to Appoint Counsel (Filing No. 6) is denied.

DATED this 25th day of July, 2011.
BY THE COURT:

s/Laurie Smith Camp
United States District Judge

*This opinion may contain hyperlinks to other documents or Web sites. The U.S.
District Court for the District of Nebraska does not endorse, recommend, approve, or
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Likewise, the court has no agreements with any of these third parties or their Web sites.
The court accepts no responsibility for the availability or functionality of any hyperlink.
Thus, the fact that a hyperlink ceases to work or directs the user to some other site does
not affect the opinion of the court.
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