Turrentine-Sims v. State of Nebraska
Filing
9
MEMORANDUM AND ORDER - IT IS ORDERED: Upon initial review of the Petition (Filing No. 1 ), the Court preliminarily determines that petitioner's claims, as set forth in this Memorandum and Order, are potentially cognizable in federal court. The clerk of the court is directed to mail copies of this Memorandum and Order and the Petition to Respondents and the Nebraska Attorney General by regular first-class mail. By August 8, 2011, respondent shall 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: August 8, 2011: deadline for respondent to file state court records in support of answer or mot ion for summary judgment. 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. 3 ) is denied without prejudice to reassertion. Petitioner paid the $5.00 filing fee on June 13, 2011. Petitioner's Motion to Proceed IFP (Filing No. 2 ) is therefore denied as moot. Petitioner's "Motion for Bail Pending Appeal" (Filing No. 1-1, attach. 2, at CM/ECF pp. 18-19) is denied. Ordered by Senior Judge Lyle E. Strom. (Copy mailed to pro se party and as directed)(TCL )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
DINAH TURRENTNIE-SIMS,
)
)
Petitioner,
)
)
v.
)
)
STATE OF NEBRASKA,
)
)
Respondent.
)
______________________________)
8:11CV194
MEMORANDUM AND 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.
has made four claims.
The claims asserted by petitioner are:
Claim One: Petitioner was deprived
of her rights under the Fourth
Amendment because no arrest warrant
had been issued and/or the
arresting officers failed to
provide her with a copy of the
arrest warrant prior to entering
her home.
Claim Two: Petitioner was denied
due process in violation of the
Fifth and Fourteenth Amendments
because (1) a conflict of interest
biased the arraigning judge; (2)
the pre-sentence investigator
failed to adequately investigate
information provided by petitioner;
(3) the prosecutor failed to abide
by the plea agreement; (4) the
prosecutor had improper contact
with the media; (5) the prosecutor
misrepresented the facts of the
Petitioner
case to the court; (6) the
sentencing judge was biased and
lacked jurisdiction; (7) the
sentencing judge failed to explain
his reasons for ordering
consecutive sentences; and (8)
petitioner was convicted and
sentenced based on false
information.
Claim Three: Petitioner was
convicted in violation of the Fifth
Amendment’s double jeopardy clause
because the alleged criminal
conduct charged under “theft by
deception” was the same conduct
charged under “abuse of a
vulnerable person.”
Claim Four: Petitioner was denied
the effective assistance of counsel
in violation of the Sixth and
Fourteenth Amendments because her
trial counsel (1) failed to
investigate and provide her with a
copy of the arrest warrant; (2)
failed to inform her of the
possibility she might receive
consecutive sentences; (3) failed
to properly explain the plea
agreement; (4) failed to adequately
investigate possible defenses; and
(5) failed to inform her of the
possibility of petitioning for
habeas corpus relief.
Liberally construed, the Court preliminarily decides
that all four of 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.
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Petitioner also seeks the appointment of counsel
(Filing No. 3.)
“There is neither a constitutional nor statutory
right to counsel in habeas proceedings; instead, [appointment] is
committed to the discretion of the trial court.”
Benson, 114 F.3d 754, 756 (8th Cir. 1997).
McCall v.
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) (citations omitted).
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 that there is no need for
the appointment of counsel at this time.
IT IS ORDERED:
1.
Upon initial review of the Petition (Filing No.
1), the Court preliminarily determines that petitioner’s claims,
as set forth in this Memorandum and Order, are potentially
cognizable in federal court.
2.
The clerk of the court is directed to mail copies
of this Memorandum and Order and the Petition to Respondents and
the Nebraska Attorney General by regular first-class mail.
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3.
By August 8, 2011, respondent shall 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:
August 8, 2011:
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 shall be followed by
respondent and petitioner:
A. The motion for summary
judgment shall be accompanied by a
separate brief, submitted at the
time of the filing of the motion.
B. The motion for summary
judgment shall be supported by such
state court records as are
necessary to support the motion.
Those records shall 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 shall be served
upon petitioner except that
respondent is only required to
provide petitioner with a copy of
the specific pages of the record
which 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
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shall 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
shall file and serve a brief in
opposition to the motion for
summary judgment. Petitioner shall
submit no other documents unless
directed to do so by the Court.
E. No later than 30 days after
the filing of petitioner’s brief,
respondent shall 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
shall file an answer, a designation
and a brief that complies with
terms of this order. (See the
following paragraph.) The
documents shall be filed no later
than 30 days after the denial of
the motion for summary judgment.
Respondent is warned that the
failure to file an answer, a
designation and a brief in a timely
fashion may result in the
imposition of sanctions, including
the release of petitioner.
5.
If respondent elects to file an answer, the
following procedures shall be followed by respondent and
petitioner:
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A. By August 8, 2011,
respondent shall file all state
court records which 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 shall be contained in
a separate filing entitled:
“Designation of State Court Records
In Support of Answer.”
B. No later than 30 days after
the filing of the relevant state
court records, respondent shall
file an answer. The answer shall
be accompanied by a separate brief,
submitted at the time of the filing
of the answer. Both the answer and
brief shall 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, nonretroactivity, 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
shall be served upon 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 which 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
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the Court requesting additional
documents. Such motion shall 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
respondent’s brief, petitioner
shall file and serve a brief in
response. Petitioner shall submit
no other documents unless directed
to do so by the Court.
E. No later than 30 days after
the filing of petitioner’s brief,
respondent shall 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:
September 7, 2011: check for
respondent to file answer and
separate brief.
6.
the Court.
No discovery shall be undertaken without leave of
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.
3) is denied without prejudice to reassertion.
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8.
2011.
Petitioner paid the $5.00 filing fee on June 13,
Petitioner’s Motion to Proceed IFP (Filing No. 2) is
therefore denied as moot.
9.
Petitioner’s “Motion for Bail Pending Appeal”
(Filing No. 1-1, attach. 2, at CM/ECF pp. 18-19) is denied.
DATED this 7th day of July, 2011.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court
* This opinion may contain hyperlinks to other documents or
Web sites. The U.S. District Court for the District of Nebraska
does not endorse, recommend, approve, or guarantee any third
parties or the services or products they provide on their Web
sites. Likewise, the Court has no agreements with any of these
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hyperlink. Thus, the fact that a hyperlink ceases to work or
directs the user to some other site does not affect the opinion
of the Court.
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