Fisher v. Boyed

Filing 8

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 claims, as they are set forth in this Memorandum and Order, are potential ly cognizable in federal court. By March 6, 2023, 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: March 6, 2023: deadline for Respondent 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 t ext: April 5, 2023: check for Respondent's 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. 7 , is denied without prejudice to reassertion. Ordered by Senior Judge Joseph F. Bataillon. (Copy mailed to pro se party)(TCL)

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JAMES L. FISHER,
Petitioner,

4:22CV3123

vs.
MEMORANDUM AND ORDER
TAGGARD BOYED, Warden, Nebraska
Department of Corrections LCC/RTC;
Respondent.

This matter is before the Court on preliminary review of Petitioner James L.
Fisher’s Petition for Writ of Habeas Corpus, Filing No. 1, 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, Petitioner’s claims are:
Claim One:

Petitioner received ineffective assistance of counsel because
counsel failed to advise Petitioner regarding any available
defenses including an alibi defense.

Claim Two:

Petitioner’s plea was not knowingly, intelligently, and
voluntarily made because Petitioner was under heavy
psychological medication and because Petitioner’s counsel
failed to explain the range of penalties to Petitioner, failed to
explain the different types of pleas presented to Petitioner,
and failed to inform Petitioner about the elements of the
offenses to which he was pleading.

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Claim Three:

Petitioner received ineffective assistance of counsel because
counsel failed to file a motion to withdraw Petitioner’s plea.

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 also requests the appointment of counsel. Filing No. 7. “[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., Wiseman
v. Wachendorf, 984 F.3d 649, 655 (8th Cir. 2021); 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 habeas corpus petition, Filing No. 1, the Court

preliminarily determines that Petitioner’s claims, as they are set forth in this
Memorandum and Order, are potentially cognizable in federal court.

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2.

By March 6, 2023, 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: March 6,
2023: 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
designation, Petitioner may file a motion with the Court requesting
additional documents. Such motion must set forth the documents

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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 March 6, 2023, Respondent must file all state court records that
are relevant to the cognizable claims. See, e.g., Rule 5(c)-(d) of

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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 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

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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: April 5, 2023: 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 for appointment of counsel, Filing No. 7, is denied

without prejudice to reassertion.

Dated this 19th day of January, 2023.
BY THE COURT:

Joseph F. Bataillon
Senior United States District Judge

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