Pratt v. Sheriff of Douglas County et al

Filing 9

MEMORANDUM AND ORDER - IT IS THEREFORE ORDERED that: Upon initial review of the habeas corpus petition (Filing No. 1 ), the court preliminarily determines that Petitioners claim is potentially cognizable in federal court. The Clerk of Court is di rected to mail copies of this Memorandum and Order and the habeas corpus petition to Respondents and the Nebraska Attorney General by regular first-class mail. By January 29, 2015, Respondents shall file a motion for summary judgment or state court records in support of an answer. The Clerk of Court is directed to set a pro se case management deadline in this case using the following text: January 29, 2015: deadline for Respondents to file state court records in support of answer or motion fo r summary judgment. The Clerk of Court is directed to set a pro se case management deadline in this case using the following text: February 30, 2015: check for Respondents 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. Petitioner's Motion for Appointment of Counsel (Filing No. 3 ) is denied without prejudice. Petitioners request for the court to di rect "respondents to deliver [him] to this court" (Filing No. 8 ) is denied in light of the foregoing setting forth the procedure under which Petitioner's claim will be heard. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party)(TCL) Modified on 12/15/2014 to add copies mailed as directed. (TCL ).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JUNEAL PRATT,

)
)
Petitioner,
)
)
v.
)
)
SHERIFF OF DOUGLAS COUNTY, )
DIRECTOR OF DEPARTMENT OF )
CORRECTIONS, and WARDEN OF )
THE OMAHA CORRECTIONAL
)
CENTER,
)
)
Respondents.
)

4:14CV3199

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. Petitioner asserts one claim: Petitioner is being
held “on an invalid incomplete sentencing/Committment [sic] order, in violation of
his fifth amendment rights under the United States Constitution.” (Id. at CM/ECF p.
1.)
Liberally construed, the court preliminarily decides that Petitioner’s claim is
potentially cognizable in federal court. However, the court cautions that no
determination has been made regarding the merits of the claims or any defenses to it
or whether there are procedural bars that will prevent Petitioner from obtaining the
relief sought.
Petitioner also seeks the appointment of counsel. (Filing No. 3.) “There 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).
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 carefully reviewed the record and finds that there is no
need for the appointment of counsel at this time.
IT IS THEREFORE ORDERED that:
1.
Upon initial review of the habeas corpus petition (Filing No. 1), the court
preliminarily determines that Petitioner’s claim is potentially cognizable in federal
court.
2.
The Clerk of Court is directed to mail copies of this Memorandum and
Order and the habeas corpus petition to Respondents and the Nebraska Attorney
General by regular first-class mail.
3.
By January 29, 2015, Respondents shall file a motion for summary
judgment or state court records in support of an answer. The Clerk of Court is
directed to set a pro se case management deadline in this case using the following text:
January 29, 2015: deadline for Respondents to file state court records in support of
answer or motion for summary judgment.
4.
If Respondents elect to file a motion for summary judgment, the
following procedures shall be followed by Respondents 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.

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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 Respondents’ brief shall be
served upon Petitioner except that Respondents are only required
to provide Petitioner with a copy of the specific pages of the
record which are cited in Respondents’ 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,
Respondents shall file and serve a reply brief. In the event that
Respondents elect not to file a reply brief, they should inform the
court by filing a notice stating that they 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, Respondents shall
file an answer, a designation and a brief that complies with terms
of this order. (See the following paragraph.) The documents shall
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be filed no later than 30 days after the denial of the motion for
summary judgment. Respondents are 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.
5.
If Respondents elect to file an answer, the following procedures shall be
followed by Respondents and Petitioner:
A.

By January 29, 2015, Respondents 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, Respondents 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 Respondents’ brief
shall be served upon Petitioner at the time they are filed with the
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court except that Respondents are only required to provide
Petitioner with a copy of the specific pages of the designated
record which are cited in Respondents’ 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 Respondents’ 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,
Respondents shall file and serve a reply brief. In the event that
Respondents elect not to file a reply brief, they should inform the
court by filing a notice stating that they 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 pro se case management
deadline in this case using the following text: February 30, 2015:
check for Respondents to file answer and separate brief.

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.
7.
Petitioner’s Motion for Appointment of Counsel (Filing No. 3) is denied
without prejudice.

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8.
Petitioner’s request for the court to direct “respondents to deliver [him]
to this court” (Filing No. 8) is denied in light of the foregoing setting forth the
procedure under which Petitioner’s claim will be heard.
DATED this 15th day of December, 2014.
BY THE COURT:
Richard G. Kopf
Senior United States District Judge

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