Rush v. Lewien
Filing
9
MEMORANDUM AND ORDER - IT IS ORDERED: Upon initial review of the habeas corpus petition (Filing No. 1 ), the Court preliminarily determines that petitioner's claims, as set forth in this Memorandum and Order, are potentially cognizable in fede ral court. Petitioner's Motion for the Appointment of Counsel (Filing No. 6 ) is denied. The Clerk of the court is directed to mail copies of this Memorandum and Order and the petition to respondent and the Nebraska Attorney General by regula r first-class mail. By August 8, 2014, 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 t ext: August 8, 2014: deadline for respondent to file state court records in support of answer or motion for summary judgment. The clerk of the court is directed to set a pro se case management deadline in this case using the following text: Septembe r 8, 2014: check for respondent to file answer and separate brief. 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. Ordered by Senior Judge Lyle E. Strom. (Copy mailed to pro se party and as directed)(TCL)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
CLIFFORD L. RUSH,
)
)
Petitioner,
)
)
v.
)
)
LEWIEN, WARDEN,
)
)
Respondent.
)
______________________________)
4:14CV3042
MEMORANDUM AND ORDER
Petitioner has filed a Petition for Writ of Habeas
Corpus (Filing No. 1).
The Court has conducted an initial review
of the Petition for Writ of Habeas Corpus to determine whether
the claims made by petitioner are, when liberally construed,
potentially cognizable in federal court.
The claims asserted by
Petitioner are:
Claim One: Petitioner was
convicted in violation of his
rights under the Fourth and
Fourteenth Amendments because law
enforcement officers did not have
reasonable suspicion to stop his
vehicle. (Id. at CM/ECF p. 5.)
Claim Two: Petitioner was
convicted in violation of his Fifth
Amendment privilege against selfincrimination because the trial
court admitted evidence of
statements petitioner made “during
initial contact with police [that]
should have been suppressed.” (Id.
at CM/ECF p. 6.)
Claim Three: The trial court
failed to make sufficient findings
of fact when denying petitioner’s
motion to suppress in violation of
petitioner’s rights under the
Fourteenth Amendment. (Id. at
CM/ECF p. 8.)
Claim Four: The trial court
admitted evidence that petitioner
failed to submit to a breath test
in violation of petitioner’s rights
under the Fourteenth Amendment.
(Id. at CM/ECF p. 10.)
Claim Five: The evidence was
insufficient to sustain the verdict
of guilt beyond a reasonable doubt
in violation of petitioner’s rights
under the Fourteenth Amendment.
(Id. at CM/ECF p. 16.)
Claim Six: The trial court imposed
an excessive sentence in violation
of petitioner’s rights under the
Fourteenth Amendment. (Id. at
CM/ECF p. 16.)
Liberally construed, the Court preliminarily decides
that petitioner’s claims 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 to
them or whether there are procedural bars that will prevent
petitioner from obtaining the relief sought.
Petitioner also seeks the appointment of counsel
(Filing No. 6).
“There is neither a constitutional nor statutory
right to counsel in habeas proceedings; instead, [appointment] is
committed to the discretion of the trial court.”
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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).
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.)
The Court has
reviewed the record and finds that there is no need for the
appointment of counsel at this time.
IT IS ORDERED:
1.
Upon initial review of the habeas corpus petition
(Filing No. 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 the Appointment of Counsel
(Filing No. 6) is denied.
3.
The Clerk of the 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.
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By August 8, 2014, respondent shall file a motion
4.
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:
August 8, 2014:
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
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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.
6.
If respondent elects to file an answer, the
following procedures shall be followed by respondent and
petitioner:
A.
By August 8, 2014, respondent shall file all state
court records that 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
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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: September 8, 2014: check for
respondent to file answer and separate brief.
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7.
the Court.
No discovery shall be undertaken without leave of
See Rule 6 of the Rules Governing Section 2254 Cases
in the United States District Courts.
DATED this 1st day of July, 2014.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court
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