Anderson v. State of Nebraska et al

Filing 8

MEMORANDUM AND ORDER - Petitioner shall file an amended petition in this case attacking either his current placement at the Lincoln Regional Center or his criminal conviction in the District Court of Lancaster County, Nebraska. If Petitioner intends to attack both, then he shall file an amended petition in this case attacking only his current placement at the Lincoln Regional Center and he shall file a new petition in a separate federal case attacking his criminal conviction. Petitioner is allow ed to proceed in forma pauperis in both federal cases--this one and the new case yet to be filed. Petitioner shall have until November 25, 2019, to file the amended petition in this case and the new petition. Failure to file an amended petition in ac cordance with this Memorandum and Order will result in dismissal of this matter without further notice. Petitioner's motion (filing no. 7 ) is denied. The clerk of the court is directed to send Petitioner two copies of the form petition for a w rit of habeas corpus under 28 U.S.C. § 2254. The clerk of the court is directed to set a pro se case management deadline in this matter with the following text: November 25, 2019: Check for amended petition. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party with two copies of form petition for a writ of habeas corpus) (KMM)

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

8:19CV172

vs.
STATE OF NEBRASKA, and
NEBRASKA MENTAL HEALTH
BOARD,

MEMORANDUM
AND ORDER

Respondents.

This matter is before the court on preliminary review of Petitioner Devin E.
Anderson’s Petition for Writ of Habeas Corpus (filing no. 1) brought pursuant to
28 U.S.C. § 2254. However, because the petition appears to attack both Petitioner’s
present confinement in the Lincoln Regional Center1 pursuant to a mental health
board commitment order and his judgment of conviction in the District Court of
Lancaster County, Nebraska, in Case No. CR14-1334, the petition is improper.
Rule 2(e) of the Rules Governing Section 2254 Cases in the United States
District Courts states: “A petitioner who seeks relief from judgments of more than
one state court must file a separate petition covering the judgment or judgments of
each court.”
Therefore, Petitioner must file an amended petition that specifies whether he
is challenging his current placement at the Lincoln Regional Center or whether he
is challenging his conviction in CR14-1334. If Petitioner wishes to challenge both,
1

At the time he filed his petition, Petitioner was confined in the Norfolk Regional
Center. (See Filing No. 1.) Subsequently, Petitioner filed a Notice of Change of Address
stating that his place of confinement had changed to the Lincoln Regional Center. (Filing
No. 6.)

then in this case (8:19CV172) he must file an amended petition challenging his
placement at the Lincoln Regional Center and he must file a separate petition
attacking his conviction in CR14-1334. Since he has been allowed to proceed in
forma pauperis here, he will be allowed to proceed in forma pauperis when he files
a new habeas case.
When filing his amended petition(s), Petitioner should be mindful of Rule 2
of the Rules Governing Section 2254 Cases in the United States Courts which
requires that the “petition must name as respondent the state officer who has
custody.” In habeas corpus challenges to present physical confinement, the default
rule is that the proper respondent is the warden of the facility where the prisoner is
being held. Rumsfeld v. Padilla, 542 U.S. 426, 434 (2005). Because Petitioner is
held at the Lincoln Regional Center, the proper respondent in a challenge to his
current placement at the Lincoln Regional Center would appear to be Ashley
Sacriste, Hospital Administrator, Lincoln Regional Center.2
Petitioner has also filed a motion requesting the appointment of counsel and
that Respondents file an answer to his petition. (Filing No. 7.) Because the petition
is improper, this matter will not proceed further until Petitioner files an amended
petition or petitions in accordance with this Memorandum and Order. If Petitioner
files an amended petition, the court will promptly examine it and order
Respondents to file an answer unless it plainly appears from the petition . . . that
the petitioner is not entitled to relief.” See Rule 4 of the Rules Governing Section
2254 Cases in the United States District Courts. Petitioner’s motion asking
Respondents to answer his petition is, therefore, denied.
With respect to the appointment of counsel, “there 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,
2

The court expresses no opinion regarding whether Ashley Sacriste or another
state officer would be the proper respondent to name in a habeas petition challenging
Petitioner’s criminal conviction in CR14-1334.

2

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. Therefore, Petitioner’s motion for the
appointment of counsel is denied without prejudice to reassertion.
IT IS THEREFORE ORDERED that:
1.
Petitioner shall file an amended petition in this case attacking either
his current placement at the Lincoln Regional Center or his criminal conviction in
the District Court of Lancaster County, Nebraska. If Petitioner intends to attack
both, then he shall file an amended petition in this case attacking only his current
placement at the Lincoln Regional Center and he shall file a new petition in a
separate federal case attacking his criminal conviction.
2.
Petitioner is allowed to proceed in forma pauperis in both federal
cases—this one and the new case yet to be filed.
3.
Petitioner shall have until November 25, 2019, to file the amended
petition in this case and the new petition. Failure to file an amended petition in
accordance with this Memorandum and Order will result in dismissal of this matter
without further notice.
4.

Petitioner’s motion (filing no. 7) is denied.

5.
The clerk of the court is directed to send Petitioner two copies of the
form petition for a writ of habeas corpus under 28 U.S.C. § 2254.
3

6.
The clerk of the court is directed to set a pro se case management
deadline in this matter with the following text: November 25, 2019: Check for
amended petition.
Dated this 25th day of October, 2019.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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