Fletcher v. Gage

Filing 8

MEMORANDUM AND ORDER that upon initial review of the petition, the Court preliminarily determines that Petitioner's claims are potentially cognizable in federal court. The Clerk's office is directed to mail copies of this Memorandum and Or der and the habeas corpus petition to Respondent and the Nebraska Attorney General by regular first-class mail. The Clerk's office is directed to set a pro se case management deadline in this case using the following text: March 30, 2015: deadl ine for Respondent to file state court records in support of answer or motion for summary judgment. The Clerk's office is directed to set a pro se case management deadline in this case using the following text: April 28, 2015: check for Respondent's answer and separate brief. Petitioner's Motion to Appoint Counsel 2 is denied without prejudice to reassertion. Ordered by Chief Judge Laurie Smith Camp. (Copy mailed to pro se party and as directed) (JSF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
BARRY W. FLETCHER,
Petitioner,
v.
BRIAN GAGE,
Respondent.

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4:14CV3214

MEMORANDUM
AND ORDER

Petitioner filed a Petition for Writ of Habeas Corpus. (Filing No. 1.) The Court has
conducted an initial review of the petition to determine whether the claims made by
Petitioner are, when liberally construed, potentially cognizable in federal court. Petitioner
raised 32 claims in his petition. (See id. at ECF 16-55.)
Liberally construed, the Court preliminarily decides the 32 claims are potentially
cognizable in federal court.1 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 seeks the appointment of counsel. (See Filing No. 2.) “[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,
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The Court’s normal practice is to summarize Petitioner’s claims in its initial review of a petition for
writ of habeas corpus. However, after careful review of the petition in this case, the Court has determined that
such a summary is unnecessary, as Petitioner clearly sets forth his 32 claims and their supporting facts.

471 (8th Cir. 1994). 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 there is no need for the
appointment of counsel at this time. Accordingly,
IT IS ORDERED:
1.

Upon initial review of the petition, the Court preliminarily determines that

Petitioner’s claims are potentially cognizable in federal court.
2.

The Clerk’s office is directed to mail copies of this Memorandum and Order

and the habeas corpus petition to Respondent and the Nebraska Attorney General by
regular first-class mail.
3.

By March 30, 2015, Respondent must file a motion for summary judgment

or state court records in support of an answer. The Clerk’s office is directed to set a pro
se case management deadline in this case using the following text: March 30, 2015:
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 must be followed by Respondent and Petitioner:
A.

The motion for summary judgment must be accompanied by a
separate brief, submitted at the time the motion is filed.

B.

The motion for summary judgment must be supported by any state
court records that are necessary to support the motion.

Those

records must be contained in a separate filing entitled: “Designation
of State Court Records in Support of Motion for Summary Judgment.”
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C.

Copies of the motion for summary judgment, the designation,
including state court records, and Respondent’s brief must be served
on Petitioner except that Respondent is only required to provide
Petitioner with a copy of the specific pages of the record that 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
must 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 must file and serve a brief in opposition to the
motion for summary judgment. Petitioner may not submit other
documents unless directed to do so by the Court.

E.

No later than 30 days after Petitioner’s brief is filed, Respondent must
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 fully submitted
for decision.

F.

If the motion for summary judgment is denied, Respondent must file
an answer, a designation and a brief that complies with terms of this
order. (See the following paragraph.) The documents must be filed
no later than 30 days after the denial of the motion for summary
judgment. Respondent is warned that failure to file an answer, a
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designation and a brief in a timely fashion may result in the
imposition of sanctions, including Petitioner’s release.
5.

If Respondent elects to file an answer, the following procedures must be

followed by Respondent and Petitioner:
A.

By March 30, 2015, Respondent must 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 must be contained in a separate filing entitled:
“Designation of State Court Records in Support of Answer.”

B.

No later than 30 days after the relevant state court records are filed,
Respondent must file an answer. The answer must be accompanied
by a separate brief, submitted at the time the answer is filed. Both the
answer and the brief must 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 must
be served on Petitioner at the time they are filed with the Court except

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that Respondent is only required to provide Petitioner with a copy of
the specific pages of the designated record that 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
must set forth the documents requested and the reasons the
documents are relevant to the cognizable claims.
D.

No later than 30 days after Respondent’s brief is filed, Petitioner must
file and serve a brief in response. Petitioner must not submit any
other documents unless directed to do so by the Court.

E.

No later than 30 days after Petitioner’s brief is filed, Respondent must
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’s office is directed to set a pro se case management
deadline in this case using the following text: April 28, 2015: check for
Respondent’s 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 to Appoint Counsel (Filing No. 2) is denied without

prejudice to reassertion.

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DATED this 13th day of February, 2015.
BY THE COURT:
s/Laurie Smith Camp
Chief United States District Judge

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