Simnick v. Gage

Filing 6

MEMORANDUM AND ORDER - Upon initial review of the Petition (Filing No. 1 ), the Court preliminarily determines that Claims One through Seven, as set forth in this Memorandum and Order, are potentially cognizable in federal court. The Clerk's Office is directed to mail copies of this Memorandum and Order and the Petition to Respondent and the Nebraska Attorney General by regular first-class mail. By November 25, 2013, Respondent shall file a motion for summary judgment or state court re cords in support of an answer. The Clerk's Office is directed to set a pro se case management deadline in this case using the following text: November 25, 2013: deadline for Respondent to file state court records in support of answer or motion for summary judgment. If Respondent elects to file an answer, the following procedures as set forth in this Memorandum and Order shall be followed by Respondent and Petitioner. The Clerk of the court is directed to set a pro se case management dea dline in this case using the following text: December 23, 2013: 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 Unite d States District Courts. Petitioner's Motion for Appointment of Counsel (Filing No. 2 ) is denied without prejudice to reassertion. Petitioner's Motion for Status (Filing No. 5 ) is granted to the extent it is consistent with this Me morandum and Order. The Court has received payment of the filing fee in this matter in the amount of $5.00. No overpayment has been received and no refund will be processed. Ordered by Chief Judge Laurie Smith Camp. (Copy mailed to pro se party)(GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
KEVIN A. SIMNICK,
Petitioner,
v.
BRIAN GAGE,
Respondent.

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8:13CV221

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. Condensed and summarized for clarity,
Petitioner’s claims are set forth below.
Claim One:

Petitioner was denied due process of law in violation of
the Fourteenth Amendment because the trial court
lacked subject-matter jurisdiction to try the case. (Id. at
CM/ECF pp. 20-21.)

Claim Two:

Petitioner was denied due process of law in violation of
the Fourteenth Amendment because the prosecutor
was allowed to file an information that was insufficient
and defective. (Id. at CM/ECF pp. 21-24.)

Claim Three:

Petitioner was denied due process of law in violation of
the Fourteenth Amendment because the prosecutor
withheld exculpatory evidence. (Id. at CM/ECF pp. 2425.)

Claim Four:

Petitioner was denied due process of law in violation of
the Fourteenth Amendment because his plea “was not
voluntarily, knowingly, understandingly and intelligently
made.” (Id. at CM/ECF pp. 26-29.)

Claim Five:

Petitioner was denied due process of law in violation of
the Fourteenth Amendment because the prosecution

induced him into pleading guilty by misrepresenting a
plea agreement that it later breached. (Id. at CM/ECF
pp. 29-30.)
Claim Six:

Petitioner was denied the effective assistance of
counsel in violation of the Sixth and Fourteenth
Amendments because trial counsel failed to (a) object
to the lack of the trial court’s subject matter jurisdiction;
(b) advise him of the true nature of the charge before he
pled; (c) inform him of the penalties of the charge
before he pled; (d) object to the invalid factual basis for
the plea; (e) object to the breach of the plea agreement
at sentencing; (f) contest the insufficient and defective
information; and (g) conduct a reasonable investigation
into the case. (Id. at CM/ECF pp. 30-37.)

Claim Seven:

Petitioner was denied the effective assistance of
counsel in violation of the Sixth and Fourteenth
Amendments because appellate counsel failed to “raise
or properly argue meritorious claims on direct appeal.”
(Id. at CM/ECF p. 38.)

Liberally construed, the Court preliminarily decides that Petitioner’s seven
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.
Petitioner also seeks the appointment of counsel. (Filing No. 2.) “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)
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(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 Claims One through Seven, as set forth in this Memorandum and
Order, are potentially cognizable in federal court.
2.
The Clerk’s Office is directed to mail copies of this Memorandum and
Order and the Petition to Respondent and the Nebraska Attorney General by
regular first-class mail.
3.
By November 25, 2013, Respondent shall file a motion for summary
judgment or state court records in support of an answer. The Clerk’s Office is
directed to set a pro se case management deadline in this case using the following
text: November 25, 2013: 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
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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 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 November 25, 2013, 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
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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 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
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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 23, 2013: check for Respondent’s 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. 2) is denied
without prejudice to reassertion.
8.
Petitioner’s Motion for Status (Filing No. 5) is granted to the extent it
is consistent with this Memorandum and Order. The Court has received payment
of the filing fee in this matter in the amount of $5.00. No overpayment has been
received and no refund will be processed.
DATED this 15th day of October, 2013.
BY THE COURT:
s/Laurie Smith Camp
Chief 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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*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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