Pardee v. Kinney

Filing 14

MEMORANDUM AND ORDER- Pardee has shown cause why this case should not be dismissed for failure to pay the filing fee. However, this matter will not proceed on Pardee's unsigned petition for writ of habeas corpus. In accordance with the Text N otice of Deficiency dated September 9, 2014, Pardee must submit a signed petitionn for writ of habeas corpus within 15 days of Septmber 11, 2014. All pending motions (Filing Nos. 4 , 5 , 6 , and 12 , Part 2 of 2) are denied without prejudice to reassertion for the reasons discussed above. Ordered by Senior Judge Lyle E. Strom. (Copy mailed to pro se party)(MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ROBERT PARDEE,

)
)
Petitioner,
)
)
v.
)
)
MICHAEL KINNEY, Director,
)
Neb. Dept. C.S.,
)
)
Respondent.
)
______________________________)

8:14CV185

MEMORANDUM AND ORDER

This matter is before the Court on petitioner Robert
Pardee’s response (Filing No. 12) to the Court’s order dated
September 2, 2014.

Also pending are Pardee’s Motion to Appoint

Counsel (Filing No. 4), Motion to Vacate and Set Aside Conviction
(Filing No. 5), and Motions to Extend (Filing Nos. 6 and 12, Part
2 of 2).

The Court will address each of these filings in the

paragraphs that follow.
A.

Response to Show Cause Order
On September 2, 2014, Pardee was ordered to show cause

within 30 days why this case should not be dismissed for his
failure to pay the filing fee.

(See Filing No. 11.)

On

September 2, 2014, the Docket Sheet did not reflect that Pardee
had paid the filing fee.

In Pardee’s response dated September 9,

2014, he provided proof of his payment of the filing fee in this
matter.

(See Filing No. 12 at CM/ECF p. 2.)

The Docket Sheet now reflects that Pardee paid the
$5.00 filing fee on July 11, 2014.

However, due to an

administrative error, Pardee’s payment of the $5.00 filing fee
was not docketed until September 9, 2014.

(See text-only entry

dated July 11, 2014, reflecting the payment was “Entered:
09/09/2014.”)

In light of the foregoing, the Court finds that

Pardee has paid the filing fee, and this case should not be
dismissed for failure to do so.
B.

Pending Motions
Pardee seeks (1) the appointment of counsel, (2) a

finding that his conviction and sentence are void, and (3) a
finding that his habeas corpus petition was filed within the
governing one-year statute of limitations or that he is entitled
to equitable tolling of the limitations period.

Pardee’s

requests for relief are premature.
The Court must conduct a preliminary review of Pardee’s
petition for writ of habeas corpus in accordance with Rule 4 of
the Rules Governing Habeas Corpus Cases.

The Court cannot

conduct its review of the petition because it is unsigned.
Filing No. 1.)

(See

As provided in the Text Notice of Deficiency

dated September 9, 2014, Pardee’s petition is considered
deficient because it is not signed.

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Pardee must correct the

deficiency or the pleading will be stricken from the record of
this case.
As for Pardee’s motion seeking the appointment of
counsel, it will be denied without prejudice to reassertion at a
later time.

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).

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

will not review Pardee’s claims until after he has filed a signed
habeas corpus petition.

Thus, no determination can be made as to

whether appointment of counsel is warranted at this time.
As for Pardee’s motions seeking a finding relating to
the merits of his claims or whether his claims are barred by the
relevant statute of limitations, the Court generally cannot make
such findings in a habeas corpus case until after it has reviewed
the relevant state court records.

The Court will order

respondent to produce the relevant state court records only if
the petition survives the Court’s preliminary review.
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A

preliminary review of the petition will not be conducted unless
and until Pardee files a signed petition.
IT IS ORDERED:
1.

Pardee has shown cause why this case should not be

dismissed for a failure to pay the filing fee.

However, this

matter will not proceed on Pardee’s unsigned petition for writ of
habeas corpus.

In accordance with the Text Notice of Deficiency

dated September 9, 2014, Pardee must submit a signed petition for
writ of habeas corpus within 15 days of September 11, 2014.
2.

All pending motions (Filing Nos. 4, 5, 6, and 12,

Part 2 of 2) are denied without prejudice to reassertion for the
reasons discussed above.
DATED this 11th day of September, 2014.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

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