Pigee v. Frakes

Filing 8

ORDER that upon initial review of the Petition (Filing No. 1 ), the court preliminarily determines that Petitioner's claims are potentially cognizable in federal court. By January 16, 2018, Respondent must 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 text: January 16, 2018: deadline for Respondent to file state court records in support of answer or motion for summary judgment. initial review of the Petition (Filing No. 1 ), the court preliminarily determines that Petitioners claims are potentially cognizable in federal court. By January 16, 2018, Respondent must 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 text: January 16, 2018: deadline for Respondent to file state court record s in support of answer or motion for summary judgment. If Respondent elects to file an answer, the following procedures must be followed by Respondent and Petitioner. 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 to Appoint Counsel (Filing No. 5 ) 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
DAMON D. PIGEE,
Petitioner,
v.
SCOTT R. FRAKES, Director,
Respondent.

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4:17CV3157

ORDER

The court has conducted an initial review of the Petition for Writ of Habeas
Corpus (Filing No. 1) to determine whether the claims made by Petitioner are, when
liberally construed, potentially cognizable in federal court. It appears Petitioner has
made four claims.
Condensed and summarized for clarity, the claims asserted by Petitioner are:
Claim One: Petitioner was denied due process because: (a) he was
threatened by the prosecutor regarding the filing of a habitual criminal
charge; (b) the prosecutor misstated the factual basis for the guilty plea;
and (c) the prosecutor provided false information to the judge at the time
of sentencing.
Claim Two: Petitioner was denied effective assistance of trial counsel
because (a) counsel did not object to the amended information; (b)
counsel used a letter from the prosecutor (presumably Filing No. 1 at
CM/ECF p. 49) to coerce Petitioner to enter a guilty plea; (c) counsel
failed to object to and request a continuance regarding the judge’s
uncertainty about whether sentences could be run concurrently; (d)
counsel failed to move to withdraw the plea when Petitioner informed

counsel about the location of a “new suspect”; (e) counsel failed to
object to statements made by the sentencing judge (see Filing No. 1 at
CM/ECF p. 17 (¶ “5") & p. 18 (¶ “8"); (f) counsel failed to object to the
insufficient factual basis for the plea; (g) counsel failed to investigate
and depose Donald Mann who authored a police report; (h) counsel
failed to object to the prosecutor’s statement at sentencing regarding
“opportunity for change . . .”.
Claim Three: Petitioner was denied due process because (a) at the time
of the plea, Petitioner was not clearly advised as to whether the sentences
could run concurrently and (b) the trial judge did not act in a fair and
impartial manner at the time of sentencing.
Claim Four: Petitioner was denied effective assistance of appellate
counsel (who was different than trial counsel) for failing to raise on
direct appeal Claims One, Two and Three.
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
thereto or whether there are procedural bars that will prevent Petitioner from obtaining
the relief sought.
Petitioner has also filed a Motion to Appoint Counsel. (Filing No. 5.) “[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 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.
IT IS THEREFORE ORDERED that:
1.
Upon initial review of the Petition (Filing No. 1), the court preliminarily
determines that Petitioner’s claims are potentially cognizable in federal court.
2.
By January 16, 2018, Respondent must 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 text:
January 16, 2018: deadline for Respondent to file state court records in support of
answer or motion for summary judgment.
3.
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.”

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 therefore 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 designation and a brief in a timely fashion may
result in the imposition of sanctions, including Petitioner’s
release.

4.
If Respondent elects to file an answer, the following procedures must be
followed by Respondent and Petitioner:
A.

By January 16, 2018, 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 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 of the court is directed to set a pro se case management
deadline in this case using the following text: February 13, 2018:
check for Respondent’s answer and separate brief.

5.
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.
6.
Petitioner’s Motion to Appoint Counsel (Filing No. 5 ) is denied without
prejudice to reassertion.
DATED this 30th day of November, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge