Holladay v. Bakewell
Filing
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MEMORANDUM AND ORDER Upon initial review of the Amended Petition (filing no. 8 ), the court preliminarily determines that Claims One through Three, as set forth in this Memorandum and Order, are potentially cognizable in federal court. Petitioner 039;s request to appoint counsel is denied without prejudice to reassertion. 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 November 14, 2011, Respondent 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: November 14 , 2011: deadline for Respondent to file state court records in support of answer or motion for summary judgment. If Respondent elects to file an answer, the procedures set out in this Memorandum and Order shall be followed by Respondent and Petitione r. The Clerk of the court is directed to set a pro se case managementdeadline in this case using the following text: December 19, 2011: check for Respondent to file answer and separate brief. No discovery shall be undertaken without leave of the court. Ordered by Judge Richard G. Kopf. (Copy mailed/e-mailed to pro se party and as directed)(GJG)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
LARRY HOLLADAY,
Petitioner,
v.
DENNIS BAKEWELL, Warden,
Respondent.
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4:11CV3103
MEMORANDUM
AND ORDER
The court has conducted an initial review of the Amended Petition for Writ of
Habeas Corpus (filing no. 8) to determine whether the claims made by Petitioner are,
when liberally construed, potentially cognizable in federal court. Liberally construed,
Petitioner asserts three claims.
Condensed and summarized for clarity, Petitioner asserts that:
Claim One1:
Petitioner was denied the effective assistance of counsel in
violation of the Sixth and Fourteenth Amendments because
his trial counsel withdrew at a critical stage of the trial.
Claim Two:
Petitioner was denied the right to appeal because his
advisory counsel told him that, in order to appeal, he only
needed to tell the judge that he intended to appeal.
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Claim One combines Grounds One, Two and Three from the Amended
Petition. (Filing No. 8 at CM/ECF pp. 5-12.)
Claim Three2:
Petitioner was denied due process in violation of the
Fourteenth Amendment because (1) he was prevented from
interviewing witnesses or collecting evidence before his
trial, (2) the county attorneys threatened and intimidated
three of his witnesses, and (3) the trial judge refused to pay
for his expert witnesses to come to court.
(Id. at CM/ECF pp. 5-14, 20-21.)
Liberally construed, the court preliminarily decides that Claims One through
Three, as set forth in this Memorandum and Order, 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 thereto or whether there are
procedural bars that will prevent Petitioner from obtaining the relief sought.
Petitioner also requests the appointment of counsel. (Id. at CM/ECF p. 22.)
“[T]here is neither a constitutional nor statutory right to counsel in habeas
proceedings; instead, [appointment of counsel] is committed to the discretion of the
trial court.” McCall v. Benson, 114 F.3d 754, 756 (8th Cir. 1997) (citations omitted).
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, 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). Upon review of the
pleadings and Petitioner’s request, there is no need for the appointment of counsel at
this time.
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Claim Three combines Grounds Five and Six from the Amended Petition. (Id.
at CM/ECF pp. 14.)
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IT IS THEREFORE ORDERED that:
1.
Upon initial review of the Amended Petition (filing no. 8), the court
preliminarily determines that Claims One through Three, as set forth in this
Memorandum and Order, are potentially cognizable in federal court.
2.
Petitioner’s request to appoint counsel is denied without prejudice to
reassertion.
3.
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.
4.
By November 14, 2011, Respondent 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:
November 14, 2011: deadline for Respondent to file state court records in support of
answer or motion for summary judgment.
5.
If Respondent elects to file a motion for summary judgment, the
following procedures shall be followed by Respondent 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.”
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C.
Copies of the motion for summary judgment, the designation,
including state court records, and Respondent’s brief shall be
served upon Petitioner except that Respondent is only required to
provide Petitioner with a copy of the specific pages of the record
which are cited in Respondent’s 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 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.
E.
No later than 30 days after the filing of Petitioner’s brief,
Respondent shall 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 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. Respondent is 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.
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6.
If Respondent elects to file an answer, the following procedures shall be
followed by Respondent and Petitioner:
A.
By November 14, 2011, Respondent 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, Respondent 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 Respondent’s brief
shall be served upon Petitioner at the time they are filed with the
court except that Respondent is only required to provide Petitioner
with a copy of the specific pages of the designated record which
are cited in Respondent’s 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
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and the reasons the documents are relevant to the cognizable
claims.
D.
No later than 30 days following the filing of Respondent’s 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,
Respondent shall 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 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: December 19,
2011: check for Respondent to file answer and separate brief.
7.
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.
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DATED this 4 th day of October, 2011.
BY THE COURT:
Richard G. Kopf
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,
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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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