Strawder v. Frakes, et al

Filing 31

MEMORANDUM AND ORDER that Petitioner's Motion to Appoint Counsel (Filing No. 28 ) is denied without prejudice to reassertion. Petitioner's Ex Parte Motion to Determine Subject Matter Jurisdiction (Filing No. 29 ) is denied without prejudice to reassertion. Petitioner's miscellaneous motion (Filing No. 30 ) is denied without prejudice to reassertion. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (LAC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
THOMAS DUANE STRAWDER,
Petitioner,
V.
SCOTT R. FRAKES, Director, NEB
DEPT CORR SERVICES, and
STATE OF NEBRASKA,
Respondents.

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4:16CV3160

MEMORANDUM AND ORDER

This matter is before the court on Petitioner’s Motion to Appoint Counsel
(Filing No. 28). “[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). 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.
Petitioner has also filed an “Ex Parte Motion to Determine Subject Matter
Jurisdiction” (Filing No. 29) and another miscellaneous motion. (Filing No. 30.)
Petitioner is advised that the next step in his case is for the court to conduct an initial
review of his claims. The court will conduct this review in its normal course of
business. Therefore, these motions will likewise be denied without prejudice to

reassertion.
IT IS THEREFORE ORDERED that:
1.

Petitioner’s Motion to Appoint Counsel (Filing No. 28) is denied without
prejudice to reassertion.

2.

Petitioner’s Ex Parte Motion to Determine Subject Matter Jurisdiction
(Filing No. 29) is denied without prejudice to reassertion.

3.

Petitioner’s miscellaneous motion (Filing No. 30) is denied without
prejudice to reassertion.

DATED this 19th day of December, 2016.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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