Gardner v. State of Nebraska

Filing 18

MEMORANDUM AND ORDER that Petitioner's Motion to Appoint Counsel and for Discovery (Filing No. 13 ) is denied without prejudice to reassertion. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (LAC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JUSTIN GARDNER,
Petitioner,

8:17CV255

vs.
STATE OF NEBRASKA,

MEMORANDUM
AND ORDER

Respondent.
This matter is before the court on Petitioner’s request for counsel, discovery,
and “scheduling packet.” (Filing No. 13.) Specifically, Petitioner requests that the
court issue him a “scheduling packet” and allow him to engage in discovery prior
to entering a progression order.
“[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, 55859 (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.1

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Petitioner requests the court to appoint him counsel in his state court
criminal cases. The court has no authority to appoint Petitioner counsel in those
cases.

The next step in Petitioner’s case is for the court to conduct an initial review
of his habeas petition. The court will conduct the initial review in its normal course
of business. Accordingly, a “scheduling packet” and discovery are premature at
this time. Further, any discovery will also be premature prior to the court issuing a
progression order that will condense and summarize Petitioner’s claims and set
forth the schedule for the parties’ response deadlines.
IT IS THEREFORE ORDERED that: Petitioner’s Motion to Appoint
Counsel and for Discovery (Filing No. 13) is denied without prejudice to
reassertion.
Dated this 18th day of October, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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