Yanga v. State of Nebraska et al

Filing 14

ORDER - Upon initial review of the habeas corpus petition (Filing No. 13 ), the court preliminarily determines that Petitioner's claims, as they are set forth in this Memorandum and Order, are potentially cognizable in federal court. By May 21, 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: May 21, 2018: deadline for Re spondent 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: June 18, 2018: check for Respondent's answer and separate brief. Petitioner's Motion to Appoint Counsel (Filing No. 3 ) is denied without prejudice to reassertion. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (KLF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
EMMANUEL S. YANGA,
Petitioner,
v.
STATE OF NEBRASKA, DIR.
SCOTT FRAKES, and MADSEN,
Warden,
Respondents.

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4:18CV3009

ORDER

This matter is before the court on preliminary review of Petitioner Emanuel S.
Yanga’s Petition for Writ of Habeas Corpus (Filing No. 13) brought pursuant to 28
U.S.C. § 2254. The purpose of this review is to determine whether Petitioner’s claims,
when liberally construed, are potentially cognizable in federal court.
Condensed and summarized for clarity, the claims asserted by Petitioner
regarding the state felony case in the District Court of Lancaster County, Nebraska
(district court #CR14-1382 and appeal to the Nebraska Court of Appeals #A-17-655)
are set forth below:
Claim One: Both trial counsel and appellate counsel provided ineffective
assistance of counsel under the Sixth Amendment.
Claim Two: The prosecutor engaged in prosecutorial misconduct in violation
of the Due Process Clause.
Claim Three: The trial court abused its discretion in violation of the Due
Process Clause.

Claim Four: The Petitioner was denied Due Process of law and Equal
Protection of the law when the jury was not properly instructed.1
The court determines that these claims, when liberally construed, are potentially
cognizable in federal court. However, the court cautions Petitioner 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 has also filed a Motion to Appoint Counsel. (Filing No. 3) “[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.

The Petitioner’s third amended petition (filing no. 13) is the one and only
operative petition and all prior petitions are dismissed without prejudice. The third
amended petition is vague. I am sorry that I cannot focus this case any better, but
counsel for the Respondent should respond as best counsel can to the “supporting
facts” portion of each claim. To the extent that Petitioner raises other claims beyond
the four set forth above, I deny them because they fail to state cognizable federal
claims.
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IT IS THEREFORE ORDERED that:
1.
Upon initial review of the habeas corpus petition (Filing No. 13), the
court preliminarily determines that Petitioner’s claims, as they are set forth in this
Memorandum and Order, are potentially cognizable in federal court.
2.
By May 21, 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: May 21,
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 motion and brief. In the event that
the designation of state court records is deemed insufficient by
Petitioner or Petitioner needs additional records from the
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designation, 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 May 21, 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
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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 answer and brief. In the event that the
designation of state court records is deemed insufficient by
Petitioner or Petitioner needs additional records from the
designation, 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.
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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: June 18, 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. 3 ) is denied without
prejudice to reassertion.
DATED this 4th day of April, 2018.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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