Collins v. Britten et al

Filing 10

MEMORANDUM AND ORDER- Upon initial review of the Petition (filing no. 1 ), the court preliminarily decides that Petitioners claim is potentially cognizable in federal court. The Clerk of the court is directed to mail copies of this Memorandum and Order and the Petition (filing no. 1 ) to Respondents and the Nebraska Attorney General by regular first-class mail. By March 29, 2013, Respondent shall file a motion for summary judgment or state court records in support of an answer. If Responde nt elects to file an answer, the parties shall follow the procedures set forth within the order. Petitioner's Motion to Appoint Counsel (filing no. 5 ), Motion for More Library Time (filing no. 8 ), and Motion for Release on Bail (filing no. 9 ) are denied. Because this Memorandum and Order informs Petitioner about the status of his case, Petitioners Motion for Status (filing no. 7 ) is denied as moot. ***Pro Se Case Management Deadlines: ( Pro Se Case Management Deadline set for 3/29/2013: deadline for Respondent to file State court records in support of answer or motion for summary judgment.) ***Pro Se Case Management Deadlines: (Pro Se Case Management Deadline set for 4/29/2013: check for Respondent to file answer and separate brief.)Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party, Respondent and Nebraska Attorney General as directed)(MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
THUNDER COLLINS,
Petitioner,
v.
FRED BRITTEN, and NEBRASKA
ATTORNEY GENERAL,
Respondents.

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4:12CV3235

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. Liberally construed,
Petitioner asserts he was denied due process in violation of the Fourteenth
Amendment because the trial court (1) denied Petitioner’s motion for directed verdict,
(2) sustained the state’s 404 motion to “adduce” evidence of a prior relationship
between Petitioner and California drug dealers, (3) allowed the state to file a second
amended information 20 days before trial, (4) denied Petitioner’s motion for new trial,
and (5) submitted a felony murder charge to the jury. (Filing No. 1.)
The court preliminarily decides that Petitioner’s claims, 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
his claims or any defenses thereto or whether there are procedural bars that will
prevent Petitioner from obtaining the relief sought.
Also pending are several Motions filed by Petitioner. The court will address
each motion in turn.

I.

Petitioner’s Motion to Appoint Counsel

Petitioner has filed a Motion to Appoint Counsel. (Filing No. 5.) “[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
Motion, there is no need for the appointment of counsel at this time.
II.

Motion for More Library Time

Petitioner has filed a Motion for More Library Time. (Filing No. 8.) In his
Motion, Petitioner argues that he should be given more than one hour per week of
library time. (Id.) Liberally construed, Petitioner alleges his limited library time is
interfering with his access to the courts. (Id.) To prove a violation of the right of
meaningful access to the courts, Petitioner must establish that Defendant did not
provide him with an opportunity to litigate his claim in “a court of law, which resulted
in actual injury, that is, the hindrance of a nonfrivolous and arguably meritorious
underlying legal claim.” Hartsfield v. Nichols, 511 F.3d 826, 831 (8th Cir. 2008)
(citation omitted). “To prove actual injury, [Petitioner] must ‘demonstrate that a
nonfrivolous legal claim had been frustrated or was being impeded.’” Id. (quoting
Lewis v. Casey, 518 U.S. 343, 353 (1996)).
Here, Petitioner has not had a problem communicating with this court (see
filing nos. 1, 5, 6, 7, 8 and 9) nor has he shown that his current library time is
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insufficient to present his legal claims. Accordingly, Petitioner’s Motion for More
Library Time is denied.
III.

Motion for Release on Bail

Petitioner has filed a Motion for Release on Bail. (Filing No. 9.) “Release on
bail pending disposition of the habeas petition, or pending appeal, requires the habeas
petitioner to show not only a substantial federal constitutional claim that presents not
merely a clear case on the law, but a clear, and readily evident, case on the facts, but
also the existence of some circumstance making [the request] exceptional and
deserving of special treatment in the interests of justice.” Martin v. Solem, 801 F.2d
324, 329 (8th Cir. 1986) (internal citations and quotations omitted). “Habeas
petitioners are rarely granted release on bail pending disposition or pending appeal.”
Id.; See also Johnston v. Marsh, 227 F.2d 528, 529 (3d Cir. 1955) (medical
emergency); cf. Boyer v. City of Orlando, 402 F.2d 966, 967-68 (5th Cir. 1968)
(extraordinary attempt to accommodate exhaustion of available state remedies with
petitioner’s clearly meritorious constitutional claim). Upon review of the pleadings
and Petitioner’s Motion, Petitioner has failed to show that any exceptional or
extraordinary circumstances warrant his release on bail pending disposition of this
proceeding.
IT IS THEREFORE ORDERED that:
1.
Upon initial review of the Petition (filing no. 1), the court preliminarily
decides that Petitioner’s claim is potentially cognizable in federal court.
2.
The Clerk of the court is directed to mail copies of this Memorandum and
Order and the Petition (filing no. 1) to Respondents and the Nebraska Attorney
General by regular first-class mail.

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3.
By March 29, 2013, 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:
March 29, 2013: deadline for Respondent to file state court records in support of
answer or motion for summary judgment.
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
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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,
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.

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

By March 29, 2013, 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
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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 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.
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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 29, 2013:
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. 5), Motion for More
Library Time (filing no. 8), and Motion for Release on Bail (filing no. 9) are denied.
8.
Because this Memorandum and Order informs Petitioner about the status
of his case, Petitioner’s Motion for Status (filing no. 7) is denied as moot.
DATED this 14th day of February, 2013.
BY THE COURT:
Richard G. Kopf
Senior 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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