King v. Gage

Filing 9

MEMORANDUM AND ORDER that upon initial review of the Petition (Filing No. 1), the court preliminarily determines that Petitioner's claims are potentially cognizable in federal court. Petitioner's Motion for Appointment of Counsel (Filing No. 5) is denied without prejudice to reassertion. 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. By March 2 5, 2016, Respondent must file a motion for summary judgment or state court records in support of an answer. If Respondent elects to file a motion for summary judgment, the parties must follow theprocedures outlined in this order. If Respondent elec ts to file an answer, the parties must follow the procedures outlined in this order. Petitioner's request to subpeona records is denied at this time (Filing No. 6). As set forth above, Respondent has been ordered to produce state court records that are relevant to Petitioner's claims. Ordered by Senior Judge Joseph F. Bataillon. (Copy mailed to pro se party)(copies mailed as directed) (ADB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
BUD LEE KING,
Petitioner,
v.
BRIAN GAGE, Warden,
Respondent.

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8:15CV346

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. Petitioner has made five
claims.
Condensed and summarized for clarity, the claims asserted by Petitioner are:
Claim One1: Petitioner was deprived the effective assistance of counsel
because Petitioner’s trial attorney (1) failed to conduct a
pretrial investigation and personally investigate the handling
and/or reliability of evidence; (2) failed to subpoena, depose
and/or call witnesses; (3) interfered with Petitioner’s rights
during his plea hearing by pressuring Petitioner to accept a
plea without waiting twenty-four hours; and (4) caused
Petitioner to plead unknowingly and involuntarily.
Claim Two:

Petitioner was prejudiced by the district court’s
rulings and was convicted based on the district
court’s mishandling of pretrial proceedings, thereby
denying him due process, effective representation,
and equal protection of the law.

Claim One of this Memorandum and Order contains the claims set forth in
the Petition as Grounds One, Two, and Three. (Filing No. 1 at CM/ECF pp. 5-6.)
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Claim Three:

Petitioner was deprived the effective assistance of
counsel because Petitioner’s appellate counsel did
not preserve appealable issues as requested, including
the issues of judicial abuse, ineffective assistance of
trial counsel, and double jeopardy.

Claim Four:

Petitioner was convicted based on insufficient
evidence and/or through mishandling of evidence.

Claim Five:

Petitioner is actually innocent.

Liberally construed, the court preliminarily decides that all five of 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
thereto or whether there are procedural bars that will prevent Petitioner from obtaining
the relief sought.
Petitioner has also filed a Motion for Appointment of Counsel. (Filing No. 5.)
“[T]here 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.

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IT IS THEREFORE ORDERED that:
1.
Upon initial review of the Petition (Filing No. 1), the court preliminarily
determines that Petitioner’s claims are potentially cognizable in federal court.
2.
Petitioner’s Motion for Appointment of Counsel (Filing No. 5) is denied
without prejudice to reassertion.
3.
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.
4.
By March 25, 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:
March 25, 2016: deadline for Respondent to file state court records in support of
answer or motion for summary judgment.
5.
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.”

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C.

Copies of the motion for summary judgment, the designation,
including state court records, and Respondent’s brief must be
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.
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6.
If Respondent elects to file an answer, the following procedures must be
followed by Respondent and Petitioner:
A.

By March 25, 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.
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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 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: April 26, 2016:
check for Respondent’s answer and separate brief.

7.
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.
8.
Petitioner’s request to subpeona records is denied at this time (Filing No.
6). As set forth above, Respondent has been ordered to produce state court records that
are relevant to Petitioner’s claims.
DATED this 10th day of February, 2016.
BY THE COURT:

s/ Joseph F. Bataillon
Senior United States District Judge
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