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)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA BUD LEE KING, Petitioner, v. BRIAN GAGE, Warden, Respondent. ) ) ) ) ) ) ) ) ) 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.) 1 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. 2 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.” 3 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. 4 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. 5 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 6

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