Alarcon-Chavez v. The State of Nebraska et al
Filing
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MEMORANDUM AND ORDER - Upon initial review of the habeas corpus petition (Filing No. 1 ), the court preliminarily determines that Petitioner's claims, as they are set forth in this Memorandum and Order, are potentially cognizable in federal cou rt. Petitioner's Motion to Appoint Counsel (Filing No. 3 ) is denied without prejudice to reassertion. By February 26, 2018, Respondents must file a motion for summary judgment or state court records in support of an answer. The clerk of the co urt is directed to set a pro se case management deadline in this case using the following text: February 26, 2018: deadline for Respondents to file state court records in support of answer or motion for summary judgment. The clerk of the court is directed to set a pro se case management deadline in this case using the following text: March 27, 2018: check for Respondents' answer and separate brief. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (KLF)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
LEODAN ALARCON-CHAVEZ,
Petitioner,
8:17CV345
vs.
THE STATE OF NEBRASKA, and
SCOTT FRAKES, Director of the
Nebraska Department of Corrections;
MEMORANDUM
AND ORDER
Respondents.
This matter is before the court on preliminary review of Petitioner Leodan
Alarcon-Chavez’s Petition for Writ of Habeas Corpus (Filing No. 1) brought
pursuant to 28 U.S.C. § 2254. The purpose of this review is to determine whether
Petitioner’s claims, when liberally construed, are potentially cognizable in federal
court. Condensed and summarized for clarity, Petitioner’s claims are:
Claim One:
Petitioner was denied his right to due process under the
5th, 6th, and 14th Amendments because the trial court
erred in rejecting Petitioner’s proposed jury instruction
and failing to find the entire step instruction was an
incorrect statement of law.
Claim Two:
Petitioner was denied his right to be free from
unreasonable searches and seizures under the 4th and
14th Amendments because the trial court erred in
overruling Petitioner’s amended motion to suppress
based on an unauthorized seizure of Petitioner’s vehicle
without a warrant.
Claim Three:
Petitioner was denied his right to a fair trial under the
5th, 6th, and 14th Amendments because of the
prosecutor’s inflammatory remarks made during his
closing and rebuttal arguments.
Claim Four:
Petitioner was denied his rights to due process and to
effective assistance of counsel under the 5th, 6th, and
14th Amendments because trial counsel failed to (1)
verify, ensure, and/or preserve the making of an official
record of the voir dire proceeding, (2) raise a challenge
under Batson v. Kentucky, 476 U.S. 79 (1986), when the
State struck a Hispanic juror from the venire; (3)
communicate plea offers; (4) speak with witnesses
provided by Petitioner; (5) advise Petitioner of his right
to independently test DNA, (6) advise Petitioner of his
right to depose the State’s expert witnesses, and (7)
object during trial to the State’s questioning of key
witnesses and offers of exhibits.
Claim Five:
Petitioner was denied his rights to due process and to a
fair trial under the 5th, 6th, and 14th Amendments
because he could not understand one of the trial court
Spanish interpreters.
The court determines that these claims, when liberally construed, are
potentially cognizable in federal court. However, the court cautions Petitioner that
no determination has been made regarding the merits of these claims or any
defenses to them or whether there are procedural bars that will prevent Petitioner
from obtaining the relief sought.
Petitioner requests the appointment of counsel. (Filing No. 3). “[T]here is
neither a constitutional nor statutory right to counsel in habeas proceedings;
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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.
Upon initial review of the habeas corpus petition (Filing No. 1), the
court preliminarily determines that Petitioner’s claims, as they are set forth in this
Memorandum and Order, are potentially cognizable in federal court.
2.
Petitioner’s Motion to Appoint Counsel (Filing No. 3) is denied
without prejudice to reassertion.
3.
By February 26, 2018, Respondents 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: February 26, 2018: deadline for Respondents to file state court records in
support of answer or motion for summary judgment.
4.
If Respondents elect to file a motion for summary judgment, the
following procedures must be followed by Respondents and Petitioner:
A.
The motion for summary judgment must be accompanied by a
separate brief, submitted at the time the motion is filed.
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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 Respondents’ brief must be
served on Petitioner except that Respondents are only required
to provide Petitioner with a copy of the specific pages of the
record that are cited in Respondents’ motion and brief. In the
event that the designation of state court records is deemed
insufficient by Petitioner or Petitioner needs additional records
from the designation, 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,
Respondents must file and serve a reply brief. In the event that
Respondents elect not to file a reply brief, they should inform
the court by filing a notice stating that they will not file a reply
brief and that the motion is therefore fully submitted for
decision.
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F.
If the motion for summary judgment is denied, Respondents
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. Respondents are
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 Respondents elect to file an answer, the following procedures must
be followed by Respondents and Petitioner:
A.
By February 26, 2018, Respondents 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, Respondents 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.
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C.
Copies of the answer, the designation, and Respondents’ brief
must be served on Petitioner at the time they are filed with the
court except that Respondents are only required to provide
Petitioner with a copy of the specific pages of the designated
record that are cited in Respondents’ answer and brief. In the
event that the designation of state court records is deemed
insufficient by Petitioner or Petitioner needs additional records
from the designation, 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 Respondents’ 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,
Respondents must file and serve a reply brief. In the event that
Respondents elect not to file a reply brief, they should inform
the court by filing a notice stating that they 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:
March 27, 2018: check for Respondents’ 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.
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Dated this 11th day of January, 2018.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge
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