Iromuanya v. Houston

Filing 7

MEMORANDUM AND ORDER - IT IS THEREFORE ORDERED that: 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 f ederal 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 August 31, 2012, Respondent shall file a motion for summa ry 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: August 31, 2012: deadline for Respondent 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: October 1, 2012: check for Respondent to file answer and separate brief. No discove ry shall be undertaken without leave of the court. See Rule 6 of the Rules Governing Section 2254 Cases in the United States District Courts. Petitioner's Motion to Appoint Counsel (filing no. 4 ) is denied without prejudice to reassertion. Ordered by Judge Joseph F. Bataillon. (Copies mailed as directed)(TCL )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
LUCKY I. IROMUANYA,

)
)
Petitioner,
)
)
v.
)
)
ROBERT P. HOUSTON, Director of )
Nebraska Department of Correctional )
Services,
)
)
Respondent.
)

4:12CV3091

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 and the
effective assistance of counsel in violation of the
Sixth and Fourteenth Amendments because his trial
counsel: (1) rejected a plea agreement without first
informing Petitioner of the plea offer; and (2) failed
to recognize that the prosecutor had a duty to prove
beyond a reasonable doubt “the absence of a sudden
quarrel provocation” regarding the second degree
murder charge and therefore failed to object on that
basis.

Claim Two:

Petitioner was denied due process of law in violation
of the Fourteenth Amendment because the trial
court: (1) omitted a “lesser included offense
instruction for attempted manslaughter”; (2) failed to
instruct the jury that the prosecutor must prove
beyond a reasonable doubt “the absence of a sudden
quarrel provocation” regarding the charges of
attempted second degree murder and second degree
murder; and (3) did not properly instruct the jury on
the distinction between “intent to kill” and “intent to
kill resulting from a sudden quarrel.”

Claim Three:

Petitioner was denied due process of the law in
violation of the Fourteenth Amendment because the
Nebraska Supreme Court: (1) upheld a ruling where
the prosecutor did not prove beyond a reasonable
doubt the “absence of sudden quarrel provocation”
regarding the charges of attempted second degree
murder and second degree murder; and (2) upheld an
improper jury instruction that did not inform the jury
of the distinction between “intent to kill” and intent
to kill resulting from a sudden quarrel.”

Liberally construed, the court preliminarily decides that all of Petitioner’s
claims are potentially cognizable in federal court. However, 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.

2

Petitioner also seeks the appointment of counsel. (Filing No. 4.) “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.
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 August 31, 2012, 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: August 31, 2012: deadline for Respondent to file state court records in support
of answer or motion for summary judgment.

3

4.
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.”

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
4

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.

5.
If Respondent elects to file an answer, the following procedures shall be
followed by Respondent and Petitioner:
A.

By August 31, 2012, 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
5

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 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.

6

F.

The Clerk of the court is directed to set a pro se case management
deadline in this case using the following text: October 1, 2012:
check for Respondent 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.
7.
Petitioner’s Motion to Appoint Counsel (filing no. 4) is denied without
prejudice to reassertion.
DATED this 19th day of July, 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.
7