Sellers v. Frakes et al

Filing 10

MEMORANDUM AND ORDER that Sellers's Motion to Appoint Counsel 2 is denied. By January 5, 2016, Respondent must file a motion for summary judgment or state court records in support of an answer. 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. Ordered by Senior Judge Richard G. Kopf. (Copies mailed as directed)(SLP)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
TERRY J. SELLERS,
Petitioner,
v.
SCOTT FRAKES, Director of the
Nebraska Department of Corrections,
and STATE OF NEBRASKA,
Respondents.

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8:15CV192

MEMORANDUM
AND ORDER

This matter is before the court on preliminary review of Petitioner Terry
Sellers’s (“Petitioner”) Petition for Writ of Habeas Corpus (Filing No. 1) filed on June
1, 2015. In 2007, Sellers was convicted by a jury of two counts of first degree
murder, one count of attempted first degree murder, and three counts of use of a
deadly weapon to commit a felony. It appears from the face of the petition that
Sellers’s claims may be barred by the statute of limitations. See 28 U.S.C.
§ 2244(d)(1). In order to ensure a just and fair resolution of this matter, the court will
enter an order progressing this case to final resolution.
Sellers seeks the appointment of counsel in this case. However, “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). 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 there is no need for the appointment of
counsel at this time.
IT IS THEREFORE ORDERED that:
1.

Sellers’s Motion to Appoint Counsel (Filing No. 2) is denied.

2.
The clerk of the court is directed to mail copies of this Memorandum and
Order and the habeas corpus petition to Respondent and the Nebraska Attorney
General by regular first-class mail.
3.
By January 5, 2016, Respondent must 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:
January 5, 2016: 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 must be followed by Respondent and Petitioner:
A.

The motion for summary judgment must be accompanied by a
separate brief, submitted at the time the motion is filed.

B.

The motion for summary judgment must be supported by any state
court records that are necessary to support the motion. Those
records must 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 must be
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served on Petitioner except that Respondent is only required to
provide Petitioner with a copy of the specific pages of the record
that 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 must 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 must file and serve a brief in
opposition to the motion for summary judgment. Petitioner may
not submit other documents unless directed to do so by the court.

E.

No later than 30 days after Petitioner’s brief is filed, Respondent
must 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 must
file an answer, a designation and a brief that complies with terms
of this order. (See the following paragraph.) The documents must
be filed no later than 30 days after the denial of the motion for
summary judgment. Respondent is warned that failure to file
an answer, a designation and a brief in a timely fashion may
result in the imposition of sanctions, including Petitioner’s
release.

5.
If Respondent elects to file an answer, the following procedures must be
followed by Respondent and Petitioner:
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A.

By January 5, 2016, Respondent must 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 must be contained in a separate
filing entitled: “Designation of State Court Records in Support of
Answer.”

B.

No later than 30 days after the relevant state court records are
filed, Respondent must file an answer. The answer must be
accompanied by a separate brief, submitted at the time the answer
is filed. Both the answer and the brief must 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
must be served on 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 that 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 must set forth the documents requested and the
reasons the documents are relevant to the cognizable claims.

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D.

No later than 30 days after Respondent’s brief is filed, Petitioner
must file and serve a brief in response. Petitioner must not submit
any other documents unless directed to do so by the court.

E.

No later than 30 days after Petitioner’s brief is filed, Respondent
must 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: February 3, 2016:
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.
DATED this 30th day of November, 2015.
BY THE COURT:
Richard G. Kopf
Senior 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
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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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