Harris v. State of Nebraska

Filing 9

MEMORANDUM AND ORDER that Upon initial review of the Petition 1 , the court preliminarily determines that Petitioner's claims are potentially cognizable in federal court. Petitioner's Motion for Appointment of Counsel 5 is denied without prejudice to reassertion. The clerk of the court is directed to set a pro se case management deadline in this case using the following text: April 8, 2016: deadline for Respondent to file state court records in support of answer or motion for summar y judgment. The clerk of the court is directed to set a pro se case management deadline in this case using the following text: May 10, 2016: check for Respondent's answer and separate brief. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (JSF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
WILLIAM TRAVION HARRIS,

)
)
)
)
)
)
)
)
)
)

Petitioner,
v.
STATE OF NEBRASKA,
Respondent.

8:15CV438

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 four
claims.
Condensed and summarized for clarity, the claims asserted by Petitioner are:
Claim One1:

Petitioner was deprived effective assistance of
counsel in violation of the Sixth and Fourteenth
Amendments because Petitioner’s attorney (1)
induced Petitioner to enter a plea of no contest by
telling him he would receive a competency hearing;
(2) did not request a competency hearing, psychiatric
examination or raise the issue of Petitioner’s
competency; (3) allowed Petitioner to enter a plea
despite knowledge of Petitioner’s incompetency or
diminished mental state; (4) failed to obtain

1

Claim 1 of this Memorandum and Order contains claims set forth in the
Petition as Grounds 3, 4, 5, 6, 7, and 8. (Filing No. 1.)
1

Petitioner’s medical records or consult with medical
specialists or witnesses regarding Petitioner’s mental
condition; (5) failed to raise a defense regarding
Petitioner’s decreased mental capacity; (6) failed to
investigate proper defenses; (7) failed to preserve the
trial record for appeal; and (8) failed to request that
Petitioner receive a competency hearing at the time
of sentencing.
Claim Two:

Petitioner was denied effective assistance of counsel
because Petitioner’s appellate counsel refused to
raise certain claims on appeal.

Claim Three:

Petitioner was denied due process because the trial
court failed to hold a competency hearing or
determine whether Petitioner’s plea was voluntary
based on the evidence regarding his mental
condition.

Claim Four:

Trial counsel’s deficient performance denied
Petitioner due process.

Liberally construed, the court preliminarily decides that Petitioner’s four 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.”
2

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.
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.
By April 8, 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: April 8,
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.

3

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
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
4

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:
A.

By April 8, 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
5

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.
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: May 10, 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 23rd day of February, 2016.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

6