Anderson v. State of Nebraska et al

Filing 13

MEMORANDUM AND ORDER - Petitioner's motion to proceed IFP (filing 10 ) is denied as moot. Petitioner's motion for the appointment of counsel (filing 11 ) is denied without prejudice to reassertion. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (LKO)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
DEVIN E. ANDERSON,
Petitioner,

8:19CV172

vs.
MEMORANDUM AND ORDER
STATE
OF
NEBRASKA,
and
NEBRASKA
MENTAL
HEALTH
BOARD,
Respondents.

This matter is before the court on Petitioner’s motion to proceed in forma
pauperis (“IFP”) (filing 10) and motion for the appointment of counsel (filing 11).
Petitioner previously was granted leave to proceed IFP. (Filing 5.) Thus, the court
will deny his present IFP motion as moot.
With respect to Petitioner’s motion for the appointment of counsel,
Petitioner appears to seek the appointment of counsel based on provisions of the
Nebraska Sex Offender Commitment Act (“SOCA”), Neb. Rev. Stat. §§ 71-1201
to 71-1226. See D.I. v. Gibson, 890 N.W.2d 506, 511 (Neb. 2017) (SOCA
authorizes the appointment of counsel for subjects involved in proceedings under
the SOCA). However, this is not a proceeding under the Nebraska SOCA, but
rather an action for federal habeas relief under 28 U.S.C. § 2254. “[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. Petitioner’s
motion is denied without prejudice to reassertion.
IT IS THEREFORE ORDERED that:
1.

Petitioner’s motion to proceed IFP (filing 10) is denied as moot.

2.
Petitioner’s motion for the appointment of counsel (filing 11) is
denied without prejudice to reassertion.
Dated this 25th day of June, 2020.
BY THE COURT:

Richard G. Kopf
Senior United States District Judge

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