Leon v. State of Nebraska et al

Filing 7

MEMORANDUM AND ORDER- Leon will have 60 days from the date of this Memorandum and Order to file an amended petition for writ of habeas corpus that clearly presents his claims for relief, together with the facts in support of those claims. Failure to file an amended petition for writ of habeas corpus may result in dismissal of this matter without further notice. Leon's motion for the appointment of counsel (Filing No. 4 ) is denied. ***Pro Se Case Management Deadlines: ( Pro Se Case Management Deadline set for 7/21/2014: deadline for Leon to file an amended petition forwrit of habeas corpus) Ordered by Senior Judge Lyle E. Strom. (Copy mailed to pro se party as directed with AO 241 form) (MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
IRA R. LEON,

)
)
Petitioner,
)
)
v.
)
)
STATE OF NEBRASKA, MICHAEL
)
KENNEY, Director of the
)
Nebraska Department of
)
Corrections, and DIANE
)
SABATKA-RHINE, Warden,
)
)
Respondents.
)
______________________________)

I.

8:14CV16

MEMORANDUM AND ORDER

INITIAL REVIEW
Petitioner Ira Leon (“Leon” or “Petitioner”) has filed

a 184-page Petition for Writ of Habeas Corpus (“Petition”)
pursuant to 28 U.S.C. § 2254 (Filing No. 1).

Petitioner

challenges his Nebraska state court convictions for first degree
murder, robbery, and use of a deadly weapon in the commission of
a felony.

(Id. at CM/ECF p. 2.)
Rule 4 of the Rules Governing Section 2254 cases

requires this Court to conduct a preliminary review of habeas
corpus petitions.

During this review, the Court must determine

whether it plainly appears from the petition and any attached
exhibits that the petitioner is not entitled to relief in the
district court.
petition.

If this is the case, the Court must dismiss the

Here, the Court cannot effectively conduct its
preliminary review of the petition because it cannot identify
Leon’s claims for relief.

Leon’s arguments are strewn throughout

his 184-page petition in no particular order, and are buried
among pages of references to case law.

Leon’s grounds for relief

are not labeled or clearly identified.

In order to ensure a just

resolution of this matter, Leon should clearly identify his
claims for relief and their corresponding facts.
On the Court’s own motion, the Court will give Leon 60
days in which to file an amended petition for writ of habeas
corpus that clearly sets forth his claims for relief together
with the facts in support of those claims.

Leon may seek an

extension of time if he needs additional time to draft the
amended petition.

The Court will direct the clerk’s office to

send to Leon the Form AO 241, Petition for Relief From a
Conviction or Sentence By a Person in State Custody, which may
assist him in organizing his habeas corpus petition.
II.

MOTION TO APPOINT COUNSEL
Petitioner seeks the appointment of counsel (Filing No.

4).

“[T]here is neither a constitutional nor statutory right to

counsel in habeas proceedings; instead, [appointment of counsel]
is committed to the discretion of the trial court.”

McCall v.

Benson, 114 F.3d 754, 756 (8th Cir. 1997) (citations omitted).
-2-

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).

Upon review

of the pleadings and petitioner’s motion, there is no need for
the appointment of counsel at this time.
IT IS ORDERED:
1.

Leon will have 60 days from the date of this

Memorandum and Order to file an amended petition for writ of
habeas corpus that clearly presents his claims for relief,
together with the facts in support of those claims.

Failure to

file an amended petition for writ of habeas corpus may result in
dismissal of this matter without further notice.
2.

The clerk’s office is directed to set a pro se

case management deadline in this case using the following text:
July 21, 2014:

deadline for Leon to file an amended petition for

writ of habeas corpus.

-3-

3.

The clerk’s office is directed to send to Leon the

Form AO 241, Petition for Relief From a Conviction or Sentence By
a Person in State Custody.
4.

Leon’s motion for the appointment of counsel

(Filing No. 4) is denied.
DATED this 22nd day of May, 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,
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.

-4-