Killingsworth v. Sabatka-Rine et al

Filing 14

MEMORANDUM AND ORDER - Petitioner's Motion for Leave to Amend (filing no. 7 ) is granted. Petitioner may proceed on all three of his Claims as set forth in this Memorandum and Order. Petitioner's duplicative Motion for Leave to Amend (fil ing no. 10 ) is denied. By March 9, 2012, 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 follo wing text: March 9, 2012: deadline for Respondents to file state court records in support of answer or motion for summary judgment. The Clerk of the court is directed to set a pro se case management deadline in this case using the following text: A pril 6, 2012: check for Respondents to file answer and separate brief. Petitioner's Motion to Appoint Counsel (filing no. 12 ) is denied. Respondents' Motion for Extension of Time to File Answer (filing no. 13 ) is granted. Respondents shall file their Answer and/or other required documents in accordance with the deadlines set forth above. Ordered by Judge Joseph F. Bataillon. (Copy mailed to pro se party) (AOA)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
DAVID L. KILLINGSWORTH,
Petitioner,
v.
DIANE SABATKA-RINE, Warden,
and ROBERT HOUSTON, Director,
Respondents.

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4:11CV3222

MEMORANDUM
AND ORDER

This matter is before the court on Petitioner’s Motion for Leave to Amend
(filing no. 7) and Motion to Appoint Counsel (filing no. 12).1 Also pending is
Respondents’ Motion for Extension of Time to File Answer. (Filing No. 13.) In his
Motion for Leave to Amend, Petitioner seeks to clarify the claims already summarized
by the court, and seeks to add additional claims to his Petition for Writ of Habeas
Corpus (the “Petition”). For good cause shown, the court will allow the amendments.
Condensed and summarized for clarity, the Petition, as amended, asserts three claims:2
Claim One:

Petitioner was denied the effective assistance of counsel in
violation of the Fourteenth Amendment because his trial
counsel failed to: (1) raise the issue that police failed to
read Petitioner his Miranda rights at the time of arrest; (2)
challenge the police interrogation of Petitioner; (3)
challenge the order permitting Petitioner to be forcibly

1

Petitioner also filed an identical copy of the Motion for Leave to Amend.
(Filing No. 10.) That Motion is denied as duplicative.
2

Petitioner added Parts 11-14 to Claim One, Parts 5-6 to Claim Two, and Claim
Three. The remainder of the Claims are unchanged from the court’s December 23,
2011, Memorandum and Order.

medicated; (4) conduct an adequate investigation prior to
Petitioner’s preliminary hearing; (5) provide Petitioner with
documents, such as police reports and medical records,
which may have assisted Petitioner in his own defense; (6)
challenge Petitioner’s transfer to the Lincoln Regional
Center prior to trial; (7) disclose to Petitioner evidence
which may have vindicated him and instead “conspired”
with officials to guarantee his conviction; (8) properly
assert an insanity defense; (9) cross-examine witnesses or
investigate witness testimony; (10) pursue a more favorable
sentence and file a direct appeal; (11) hire an investigator;
(12) get a “speedy and public trial by an impartial jury;”
(13) obtain an appropriate plea agreement for Petitioner and
instead “coerced him into” an unconscionable plea; and
(14) advise Petitioner while he was in sound mind and
therefore allowed Petitioner to “forfeit his judicial
proceeding.”
Claim Two:

Petitioner was denied due process of law in violation of the
Sixth and Fourteenth Amendments because the trial court:
(1) permitted Petitioner to be forcibly medicated prior to,
and during, his trial and did not conduct proper competency
proceedings; (2) sentenced Petitioner based on bias and
prejudice; (3) prevented Petitioner from presenting
evidence that he did not receive a Miranda rights
advisement and that police coerced Petitioner’s confession;
(4) prevented Petitioner from presenting evidence that he is
actually innocent; (5) failed to advise Petitioner regarding
the fact that some of his convictions required consecutive
sentences which resulted in an “invalid plea;” and (6) failed
to advise Petitioner regarding his rights regarding self
incrimination.
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Claim Three:

Petitioner was denied the effective assistance of counsel in
violation of the Fourteenth Amendment because his
appellate counsel failed to raise Claims One and Two on
direct appeal.

Liberally construed, the court preliminarily decides that all three of Petitioner’s
revised claims are potentially cognizable in federal court. Again, the court cautions
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. In light of the amendments, the progression of this matter
is revised as set forth below.
Also pending is Petitioner’s Motion to Appoint Counsel. (Filing No. 12.)
“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, 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.
Petitioner’s Motion for Leave to Amend (filing no. 7) is granted.
Petitioner may proceed on all three of his Claims as set forth in this Memorandum and
Order. Petitioner’s duplicative Motion for Leave to Amend (filing no. 10) is denied.
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2.
By March 9, 2012, 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:
March 9, 2012: deadline for Respondents to file state court records in support of
answer or motion for summary judgment.
3.
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.

D.

No later than 30 days following the filing of the motion for
summary judgment, Petitioner shall file and serve a brief in
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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,
Respondents shall file and serve a reply brief. In the event that
Respondents elect 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, 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.

4.
If Respondents elect to file an answer, the following procedures shall be
followed by Respondents and Petitioner:
A.

By March 9, 2012, 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
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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 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, 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.
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F.

The Clerk of the court is directed to set a pro se case management
deadline in this case using the following text: April 6, 2012: check
for Respondents to file answer and separate brief.

5.
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.
6.

Petitioner’s Motion to Appoint Counsel (filing no. 12) is denied.

7.
Respondents’ Motion for Extension of Time to File Answer (filing no.
13) is granted. Respondents shall file their Answer and/or other required documents
in accordance with the deadlines set forth above.
DATED this 9th day of February, 2012.
BY THE COURT:
s/ Joseph F. Bataillon
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 guarantee any third parties or the services or products they provide on
their Web sites. 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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