Hernandez v. State of Nebraska
MEMORANDUM AND ORDER that Petitioner's 21 Motion for Hearing and 22 Motion to Appoint Counsel are denied without prejudice to reassertion. 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,
STATE OF NEBRASKA, ROBERT P.
HOUSTON, Director, FRED BRITTEN,
Warden, TECUMSEH STATE
CORRECTIONAL INSTITUTE, and
ATTORNEY GENERAL OF THE
STATE OF NEBRASKA,
CASE NO. 4:13CV3004
This matter is before the court on Petitioner’s Motion for an Evidentiary Hearing and
Motion to Appoint Counsel. (Filing Nos. 21 and 22.) The court explained to Petitioner in
a previous Memorandum and Order that “there 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 or an evidentiary hearing at this time.
IT IS THEREFORE ORDERED that: Petitioner’s Motion for an Evidentiary Hearing
and Motion to Appoint Counsel (Filing Nos. 21 and 22) are denied without prejudice to
DATED this 18th day of April, 2013.
BY THE COURT:
s/Laurie Smith Camp
Chief United States District Judge
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