Dyer v. Bakewell et al

Filing 12

MEMORANDUM AND ORDER regarding Petition for Writ of Habeas Corpus 1 filed by Lewis Fitzgerald Dyer. Upon initial review of the habeas corpus petition (Filing No. 1 ), the court preliminarily determines that claims One and Two are potentially cogniz able in federal court. The court decides that Claim Three is not cognizable in a federal court habeas action and is therefore dismissed. Petitioner's request for the appointment of counsel (Filing No. 5 ) is denied without prejudice to reassert ion. Clerk to mail copies. By November 21, 2011, the respondent shall file a motion for summary judgment or state court records in support of an answer. ***Pro Se Case Management Deadline set for 11/21/2011: deadline for respondent to file state cour t records in support of answer or motion for summary judgment. Pro Se Case Management Deadline set for December 21, 2011: check for respondent to file answer and separate brief. Ordered by Judge Laurie Smith Camp. (Copy mailed to pro se party and as directed)(JAB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
LEWIS FITZGERALD DYER,
Petitioner,
v.
DENNIS BAKEWELL, Warden, and
NEBRASKA STATE PENITENTIARY,
Respondents.

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CASE NO. 8:11CV312

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. Petitioner has made three claims.
Condensed and summarized for clarity, the claims asserted by Petitioner are:
Claim One:

Petitioner was denied due process of law in violation of
the Fourteenth Amendment because: (1) his conviction
was against the greater weight of the evidence; (2) the
trial court abused its discretion in finding Petitioner
guilty and allowing the August 20, 2009 passenger
manifest and hearsay testimony about the passenger
manifest; (3) the cumulative effect of the trial court’s
errors resulted in an unfair trial; and (4) the State used
drug courier profile testimony as substantive evidence
of Petitioner’s guilt.

Claim Two:

Petitioner was denied the effective assistance of
counsel in violation of the Sixth Amendment because
his trial counsel failed to: (1) challenge the illegal
detention, search, and custodial interrogation of
Petitioner made by the NSP investigator; (2) file a
motion to suppress any evidence obtained from
Petitioner and/or his personal belongings based upon
the illegal detention, search, and custodial interrogation
initiated by NSP; (3) file a motion to suppress based on
the NSP’s failure to obtain a search warrant prior to
opening Petitioner’s suitcase; (4) object to the
admission of the passenger manifest on the basis of
foundation and best evidence; (5) object to the

testimony of the NSP investigator and the admission of
the handwritten baggage claim check on the basis of
hearsay, foundation, and/or authentication; and (6)
challenge the fact that the NSP violated Petitioner’s
Miranda rights.
Claim Three:

The trial court erred in: (1) admitting the August 20,
2009, passenger manifest for demonstrative purposes;
(2) allowing testimony based upon the contents of that
manifest in violation of Neb. Rev. Stat. §27-801(3),
§27-803(5), and §27-1002,; and (3) admitting nine
grams of marijuana, all over the relevance objection of
the defense.

Liberally construed, the court preliminarily decides that Claims One and Two 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 to them or whether
there are procedural bars that will prevent the petitioner from obtaining the relief sought.
Liberally construed, the court decides that Claim Three is not cognizable in a federal court
habeas action, as it involves questions of state law only that have been decided by a state
court. Lupien v. Clarke, 403 F.3d 615, 619 (8th Cir. 2005).
Petitioner also seeks the appointment of counsel. (Filing No. 5.) “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

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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 habeas corpus petition (Filing No. 1), the court
preliminarily determines that the following claims are potentially cognizable
in federal court: Claims One and Two;

2.

The court decides that Claim Three is not cognizable in a federal court
habeas action and is therefore dismissed;

3.

Petitioner’s request for the appointment of counsel (Filing No. 5) is denied
without prejudice to reassertion;

4.

The Clerk of the court is directed to mail copies of this memorandum and
order and the section 2254 petition to the respondent and the Nebraska
Attorney General by regular first-class mail;

5.

By November 21, 2011, the 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: November 21, 2011: deadline for respondent to file
state court records in support of answer or motion for summary judgment;

6.

If the respondent elects to file a motion for summary judgment, the following
procedures shall be followed by the respondent and the 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 the respondent’s brief shall be
served upon the petitioner except that respondent is only required to
provide the petitioner with a copy of the specific pages of the record
which are cited in the respondent’s brief. In the event that the
designation of state court records is deemed insufficient by the
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petitioner, the 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.

E.

No later than 30 days after the filing of the petitioner’s brief, the
respondent shall file and serve a reply brief. In the event that the
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.

7.

No later than 30 days following the filing of the motion for summary
judgment, the petitioner shall file and serve a brief in opposition to the
motion for summary judgment. The petitioner shall submit no other
documents unless directed to do so by the court.

If the motion for summary judgment is denied, the 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. The 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 the
petitioner;

If the respondent elects to file an answer, the following procedures shall be
followed by the respondent and the petitioner:
A.

By November 21, 2011, the respondent shall file all state court
records which are relevant to the cognizable claims. See, e.g., Rule
5(c)-(d) of the 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, the 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 the
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,
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e.g., Rules 5(b) and 9 of the the Rules Governing Section 2254 Cases
in the United States District Courts.
C.

D.

No later than 30 days following the filing of respondent’s brief, the
petitioner shall file and serve a brief in response. The petitioner shall
submit no other documents unless directed to do so by the court;

E.

No later than 30 days after the filing of the petitioner’s brief, the
respondent shall file and serve a reply brief. In the event that the
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.

8.

Copies of the answer, the designation, and the respondent’s brief
shall be served upon the petitioner at the time they are filed with the
court except that respondent is only required to provide the petitioner
with a copy of the specific pages of the designated record which are
cited in the respondent’s brief. In the event that the designation of
state court records is deemed insufficient by the petitioner, the
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.

The Clerk of the court is directed to set a pro se case management
deadline in this case using the following text: December 21, 2011:
check for respondent to file answer and separate brief; and

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.

DATED this 6th day of October, 2011.
BY THE COURT:
s/Laurie Smith Camp
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.
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