Red Kettle v. United States of America

Filing 10

MEMORANDUM AND ORDER - Upon initial review of the Petition (filing no. 1 ), the court preliminarily determines that Petitioner's claim, as set forth in this Memorandum and Order, is potentially cognizable in federal court. The Clerk of the cour t 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 November 14, 2011, Respondents shall file a motion for summary judgment or state court record s 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: November 14, 2011: deadline for Respondents to file state court records in support of answer or motion for s ummary judgment. If Respondents elect to file an answer, the procedures in this order shall be followed by Respondents and Petitioner. The Clerk of the court is directed to set a pro se case management deadline in this case using the following text: December 14, 2011: check for Respondents to file answer and separate brief. Petitioner's Motion to Appoint Counsel (filing no. 4 ) is denied without prejudice to reassertion. Petitioner's Motions to Amend (filing nos. 8 and 9 ) are gran ted. The Clerk of the court is directed to add Robert Houston as a Respondent in this matter. Petitioner's Motion for Enlargement of Custody Status (filing no. 6 ) is denied.Ordered by Judge Richard G. Kopf. (Copy mailed/e-mailed to pro se party and to Nebraska Attorney General)(GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
BYRON K. RED KETTLE,
Petitioner,
v.
UNITED STATES OF AMERICA
and ROBERT HOUSTON,

)
)
)
)
)
)
)
)
)

8:11CV264

MEMORANDUM
AND ORDER

Respondents.
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. Petitioner has made one
claim.
Condensed and summarized for clarity, the claim asserted by Petitioner is:
Petitioner was denied due process of law in violation of the Fourteenth
Amendment because he is being held illegally by the State of Nebraska
and he is entitled to an “overall reduction” of his sentence and credit for
time already spent in federal custody.
Liberally construed, the court preliminarily decides that Petitioner’s claim is
potentially cognizable in federal court.

However, the court cautions that no

determination has been made regarding the merits of this claim or any defenses thereto
or whether there are procedural bars that will prevent Petitioner from obtaining the
relief sought.
Petitioner also seeks the appointment of counsel. (Filing No. 4.) “There 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) (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 THEREFORE ORDERED that:
1.

Upon initial review of the Petition (filing no. 1), the court preliminarily

determines that Petitioner’s claim, as set forth in this Memorandum and Order, is
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.
3.

By November 14, 2011, Respondents 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:
November 14, 2011: deadline for Respondents to file state court records in support of
answer or motion for summary judgment.
4.

If Respondents elect to file a motion for summary judgment, the

following procedures shall be followed by Respondents 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.
2

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 Respondents’ brief shall be
served upon Petitioner except that Respondents are only required
to provide Petitioner with a copy of the specific pages of the
record which are cited in Respondents’ 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 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,
Respondents shall file and serve a reply brief. In the event that
Respondents elect not to file a reply brief, they should inform the
court by filing a notice stating that they 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, Respondents shall
file an answer, a designation and a brief that complies with terms
of this order. (See the following paragraph.) The documents shall
3

be filed no later than 30 days after the denial of the motion for
summary judgment. Respondents are 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 Respondents elect to file an answer, the following procedures shall be

followed by Respondents and Petitioner:
A.

By November 14, 2011, Respondents 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, Respondents 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, 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 Respondents’ brief
shall be served upon Petitioner at the time they are filed with the
4

court except that Respondents are only required to provide
Petitioner with a copy of the specific pages of the designated
record which are cited in Respondents’ 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 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 Respondents’ 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,
Respondents shall file and serve a reply brief. In the event that
Respondents elect not to file a reply brief, they should inform the
court by filing a notice stating that they 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: December 14,
2011: check for Respondents to file answer and separate brief.

6.

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.
7.

Petitioner’s Motion to Appoint Counsel (filing no. 4) is denied without

prejudice to reassertion.
8.

Petitioner’s Motions to Amend (filing nos. 8 and 9) are granted. The
5

Clerk of the court is directed to add Robert Houston as a Respondent in this matter.
9.

Petitioner’s Motion for Enlargement of Custody Status (filing no. 6) is

denied.
DATED this 28th day of September, 2011.
BY THE COURT:
Richard G. Kopf
United States District Judge

*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 third parties
or their Web sites. The court accepts no responsibility for the availability or
functionality of any 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.
6