Red Kettle v. Scott Frakes

Filing 24

MEMORANDUM AND ORDER - Upon initial review of the amended habeas corpus petition (Filing No. 18 ), the Court preliminarily determines that petitioners claims, as set forth in this memorandum and order, are potentially cognizable in federal court. T he clerk of the court is directed to mail copies of this memorandum and order and the amended section 2254 petition to respondent and the Nebraska Attorney General by regular first-class mail. The clerk of the court is directed to set a pro se ca se management deadline in this case using the following text: February 24, 2014: 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 manag ement deadline in this case using the following text: March 24, 2014: check for respondent to file answer and separate brief. Petitioner's Motion for Appointment of Counsel (Filing No. 20 ) is denied. Petitioner's Motions for "Production of Evidence" and "In Camera Inspection" (Filing Nos. 21 and 22 ) are denied.Ordered by Senior Judge Lyle E. Strom. (Copy mailed to pro se party and as directed)(GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
BYRON K. RED KETTLE,
Petitioner,
v.
STATE OF NEBRASKA,
Respondent.

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8:13CV171

MEMORANDUM AND ORDER

Petitioner has filed an Amended Petition for Writ of
Habeas Corpus (Filing No. 18).

The Court has conducted an

initial review of the Amended Petition for Writ of Habeas Corpus
to determine whether the claims made by petitioner are, when
liberally construed, potentially cognizable in federal court.
The claims asserted by petitioner are:
Claim One:

Petitioner was denied a fair trial in
violation of the Sixth and Fourteenth
Amendments because the trial court allowed
the State of Nebraska to rely on statutory
law that did not require corroboration of a
rape victim’s testimony, and this statutory
law was enacted during the pendency of
petitioner’s criminal proceedings. (Id. at
CM/ECF pp. 5, 16-17.)

Claim Two:

Petitioner was denied his right to a speedy
trial in violation of the Sixth and
Fourteenth Amendments. (Id. at CM/ECF pp. 7,
18-20.)

Claim Three:

Petitioner received the ineffective
assistance of counsel in violation of the
Sixth and Fourteenth Amendments because trial
counsel did not protect petitioner’s right to

a speedy trial. (Id. at CM/ECF pp. 18 at
CM/ECF pp. 8, 21-22.)
Claim Four:

Petitioner received the ineffective
assistance of counsel in violation of the
Sixth and Fourteenth Amendments because
appellate counsel did not argue on direct
appeal that petitioner’s right to a speedy
trial had been violated. (Id.)

Liberally construed, the Court preliminarily decides
that 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 to
them or whether there are procedural bars that will prevent
petitioner from obtaining the relief sought.
Petitioner seeks the appointment of counsel (Filing No.
20).

“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
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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 amended habeas corpus

petition (Filing No. 18), 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 amended section 2254
petition to respondent and the Nebraska Attorney General by
regular first-class mail.
By February 24, 2014, respondent shall file a

3.

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:
February 24, 2014:

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:

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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
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
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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:
A.

By February 24, 2014, respondent shall 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 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, 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 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
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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
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: March 24, 2014: check for
respondent 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 for Appointment of Counsel

(Filing No. 20) is denied.
8.

Petitioner’s Motions for “Production of Evidence”

and “In Camera Inspection” (Filing Nos. 21 and 22) are denied.

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This matter will proceed as set forth in this memorandum and
order.
DATED this 14th day of January, 2014.
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,
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they provide on their Web sites. Likewise, the Court has no agreements with
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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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