Calderon v. Houston

Filing 13

MEMORANDUM AND ORDER - Upon initial review of the Amended Petition (Filing No. 5 ), the court preliminarily decides that Petitioner's claims are potentially cognizable in federal court. The Clerk of the court is directed to mail copies of t his Memorandum and Order and the Amended Petition (Filing No. 5 ) 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 su pport 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 ju dgment. 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. Petitioner's Motion to Allow Purchase of Enve lopes (Filing No. 3 ), Motion for Temporary Restraining Order (Filing No. 4 ), Motion to Appoint Counsel (Filing No. 8 ), and Motion for Preliminary Injunction (Filing No. 11 ) are denied. Ordered by Chief Judge Laurie Smith Camp. (Copies mailed as directed and to pro se party)(AOA)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
RAUL CALDERON,
Petitioner,
v.
ROBERT P. HOUSTON,
Respondent.

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CASE NO. 4:13CV3007

MEMORANDUM
AND ORDER

The court must conduct an initial review of the Amended Petition for Writ of Habeas
Corpus (“Amended Petition”) (Filing No. 5) to determine whether the claims made by
Petitioner are, when liberally construed, potentially cognizable in federal court. Liberally
construed, Petitioner asserts three claims.
Claim One:

Petitioner was denied the effective assistance of trial counsel
in violation of the Sixth and Fourteenth Amendments because
his trial counsel (1) was “in cahoots with the state,” (2) failed to
argue the defense of “self-defense,” and (3) failed to call
medical personnel as witnesses. (Filing No. 5 at CM/ECF pp.
1-11.)

Claim Two:

Petitioner was denied due process in violation of the
Fourteenth Amendment because of prosecutorial misconduct.
(Id. at CM/ECF pp. 11-14.)

Claim Three:

Petitioner was denied due process in violation of the
Fourteenth Amendment because of judicial misconduct. (Id.
at CM/ECF pp. 18-19.)

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 Motions for Temporary Restraining Order and Preliminary
Injunction
Petitioner has filed a Motion for Temporary Restraining Order (Filing No. 4) and a

Motion for Preliminary Injunction (Filing No. 11). The standards set forth by Dataphase
Sys., Inc. v. C.L. Sys., Inc., 640 F.2d 109 (8th Cir. 1981), apply to these motions. In
Dataphase, the court, sitting en banc, clarified the factors district courts should consider
when determining whether to grant a motion for preliminary injunctive relief:
(1) the threat of irreparable harm to the movant; (2) the state of balance
between this harm and the injury that granting the injunction will inflict on
other parties litigant; (3) the probability that movant will succeed on the
merits; and (4) the public interest.
Id. at 114. “No single factor in itself is dispositive; rather, each factor must be considered
to determine whether the balance of equities weighs toward granting the injunction.”
United Indus. Corp. v. Clorox Co., 140 F.3d 1175, 1179 (8th Cir. 1998). “At base, the
question is whether the balance of equities so favors the movant that justice requires the
court to intervene to preserve the status quo until the merits are determined . . . .”
Dataphase, 640 F.2d at 113.
Here, the court finds that the Dataphase factors do not favor Petitioner to a degree
sufficient to warrant issuance of preliminary injunctive relief.1 Accordingly, his Motion for
Temporary Restraining Order and Motion for Preliminary Injunction are denied.

1

Indeed, the Amended Petition appears to be successive. (See Case No.
4:08CV3128.) However, when liberally construing Petitioner’s assertions, he may be
attempting to assert a claim pursuant to 42 U.S.C. § 1983 for an injunction against forced
injections. Such a claim is not properly considered within a habeas petition. To the extent
that Petitioner desires to pursue such a claim, he should do so in a separate proceeding.
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II.

Petitioner’s Motion to Appoint Counsel
Petitioner has also filed a Motion to Appoint Counsel.

“[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.
III.

Petitioner’s Motion to Allow Purchase of Envelopes
Petitioner has filed a Motion asking the court to direct the Nebraska Department of

Corrections to permit him to buy ten 10x13 manilla envelopes. (Filing No. 3.) Liberally
construed, Petitioner alleges his inability to purchase these envelopes 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

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‘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, 3, 4, 5, and 11) nor has he described any instance in which he was denied access
to the courts. Accordingly, Petitioner’s Motion to Allow Purchase of Envelopes is denied.
IV.

Petitioner’s Request for Copies
Liberally construed, Petitioner also requests copies from the court. (See Filing No.

1.) Petitioner does not have the right to receive copies of documents without payment,
even if the court granted him leave to proceed in forma pauperis. 28 U.S.C. § 1915; see
also Haymes v. Smith, 73 F.R.D. 572, 574 (W.D.N.Y. 1976), (“The generally recognized
rule is that a court may not authorize the commitment of federal funds to underwrite the
necessary expenditures of an indigent civil litigant’s action.”) (citing Tyler v. Lark, 472 F.2d
1077 (8th Cir. 1973), other citations omitted). If Petitioner requires copies of court
documents, he should contact the Clerk of the court to determine the proper method of
requesting and paying for copies. Petitioner’s request for copies is denied.
IT IS THEREFORE ORDERED that:
1.

Upon initial review of the Amended Petition (Filing No. 5), the court
preliminarily decides that Petitioner’s claims are potentially cognizable in
federal court.

2.

The Clerk of the court is directed to mail copies of this Memorandum and
Order and the Amended Petition (Filing No. 5) to Respondents and the
Nebraska Attorney General by regular first-class mail.

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

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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 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.

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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 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.;

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.
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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; and

7.

Petitioner’s Motion to Allow Purchase of Envelopes (Filing No. 3), Motion for
Temporary Restraining Order (Filing No. 4), Motion to Appoint Counsel
(Filing No. 8), and Motion for Preliminary Injunction (Filing No. 11) are
denied.

DATED this 13th day of February, 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 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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