Torres v. Houston

Filing 8

MEMORANDUM AND ORDER - Upon initial review of the Petition (filing 1 ), the Court preliminarily determines that Petitioner's claims, as set forth in this Memorandum and Order, are potentially cognizable in federal court. Petitioner's Mot ion for Appointment of Counsel (filing 4 ) is denied without prejudice to reassertion. The Clerk of Court is directed to mail copies of this Memorandum and Order and the Petition to Respondent and the Nebraska Attorney General by regular first-cla ss mail. The Clerk of Court is directed to set a case management deadline in this case using the following text: April 16, 2013: deadline for Respondent to file state court records in support of answer or motion for summary judgment. The Clerk of Cou rt is directed to set a case management deadline in this case using the following text: May 16, 2013: check for Respondent to file answer and separate brief. Ordered by Magistrate Judge F.A. Gossett. (Copy mailed as directed and to pro se party)(AOA)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MARCO ENRIQUE TORRES, Jr.
Petitioner,
v.
ROBERT HOUSTON
Respondent.

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4:13CV3027

MEMORANDUM
AND ORDER

The Court has conducted an initial review of the Petition for Writ of Habeas
Corpus (filing 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 because the State of
Nebraska withheld over 800 pages of documents (Brady
violation) which prevented him from preparing a proper
defense.

Claim Two:

Petitioner received ineffective assistance of counsel in
violation of the Sixth Amendment because trial counsel (1)
failed to conduct an independent investigation or perform
adequate discovery; (2) failed to call witnesses who could
have contradicted testimony of the state’s witnesses; and
(3) failed to develop a viable defense in advance of trial.

Claim Three:

Petitioner was denied due process of law because the court
considered opinion testimony of attorneys who were not
part of the kidnapping case.

Liberally construed, the Court preliminarily decides that Claims One, Two, and
Three, as set forth in this Memorandum and Order, 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.
Petitioner also seeks the appointment of counsel. (Filing 4.) “[T]here 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).
The Court has carefully reviewed the record and finds that there is no need for the
appointment of counsel at this time.
Accordingly,
IT IS ORDERED:
1.

Upon initial review of the Petition (filing 1), the Court preliminarily
determines that Petitioner’s claims, as set forth in this Memorandum and
Order, are potentially cognizable in federal court.

2.

Petitioner’s Motion for Appointment of Counsel (filing 4) is denied
without prejudice to reassertion.

3.

The Clerk of Court is directed to mail copies of this Memorandum and
Order and the Petition to Respondent and the Nebraska Attorney General
by regular first-class mail.

4.

By April 16, 2013, Respondent shall file a motion for summary
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judgment or state court records in support of an answer. The Clerk of
Court is directed to set a case management deadline in this case using the
following text: April 16, 2013: deadline for Respondent to file state court
records in support of answer or motion for summary judgment.
5.

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. 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.

6.

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

By April 16, 2013, Respondent shall file all state court records
which are relevant to the cognizable claims. 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,
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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.
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 Court is directed to set a case management deadline
in this case using the following text: May 16, 2013: check for
Respondent to file answer and separate brief.
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7.

No discovery shall be undertaken without leave of court.

DATED February 27, 2013.
BY THE COURT:

S/ F.A. Gossett
United States Magistrate Judge

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