Hernandez v. State of Nebraska

Filing 19

MEMORANDUM AND ORDER granting 7 Motion to Amend; denying without prejudice to reassertion 11 Motion to Appoint Counsel ; denying 16 Motion to Show Cause. Ordered by Chief Judge Laurie Smith Camp. (Copy mailed to pro se party)(ADB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MICHAEL A. HERNANDEZ,
Petitioner,
v.
STATE OF NEBRASKA, ROBERT P.
HOUSTON, Director, FRED BRITTEN,
Warden, TECUMSEH STATE
CORRECTIONAL INSTITUTE, and
ATTORNEY GENERAL OF THE
STATE OF NEBRASKA,
Respondents.

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CASE NO. 4:13CV3004

MEMORANDUM
AND ORDER

This matter is before the court on Petitioner Michael Hernandez’s (“Petitioner”)
Motion for Leave to Amend, Motion to Appoint Counsel, and Motion to Show Cause.
(Filing Nos. 7, 11, and 16.)
A.

Motion for Leave to Amend
Petitioner has moved the court for leave to file an Amended Petition for Writ of

Habeas Corpus. (Filing No. 7.) For good cause shown, the court will grant Petitioner’s
Motion and will consider Petitioner’s Amended Petition for Writ of Habeas Corpus (Filing
No. 10) the operative petition in this matter.
B.

Motion to Appoint Counsel
Petitioner has moved for the appointment of counsel. (Filing No. 11.) “[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.
C.

Motion to Show Cause
Petitioner asks this court to bring criminal charges against Respondents because

prison staff did not deliver Petitioner’s “Notice of Constitutional Question to United States
Attorney General Eric Holder [by] certified mail as Petitioner requested.” (Filing No. 16.)
Petitioner argues that these actions have deprived him of his First Amendment right to
petition the government for a redress of grievances. (Id. at CM/ECF p. 1.)
This court may entertain an application for writ of habeas corpus on behalf of a
person in state custody “only on the ground that he is in custody in violation of the
Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). Federal habeas
review is not a forum for attacking the actions of prison staff or the conditions of Petitioner’s
confinement. Accordingly, Petitioner’s Motion will be denied.

IT IS THEREFORE ORDERED that:
1.

Petitioner’s Motion for Leave to Amend (Filing No. 7) is granted;

2.

Petitioner’s Motion to Appoint Counsel (Filing No. 11) is denied without
prejudice to reassertion; and

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3.

Petitioner’s Motion to Show Cause (Filing No. 16) is denied.

DATED this 13th day of March, 2013.
BY THE COURT:

s/Laurie Smith Camp
Chief 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
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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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