Npimnee v. Settles

Filing 8

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. By April 17, 2025, 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 17, 2025: deadline for Respondent to file state court records in support of answer or motion for summary judgment. If Respondent elects to file an answer, the following procedures must be followed by Respondent and Petitioner: By April 17, 2025, Respo ndent must file all state court records that are relevant to the cognizable claims. The clerk of the court is directed to set a pro se case management deadline in this case using the following text: May 19, 2025: check for Respondent's answer and separate brief. Petitioner's motion seeking the appointment of counsel, Filing No. 4, is denied without prejudice. Ordered by Senior Judge John M. Gerrard. (Copy mailed to pro se party) (ADB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
HOPE T. NPIMNEE,
Petitioner,

8:24CV130

vs.
MEMORANDUM AND ORDER
SHAUN SETTLES,
Respondent.
This matter is before the Court on a motion seeking appointment of
counsel, Filing No. 4, filed by Petitioner Hope T. Npimnee (“Petitioner”) and
for preliminary review of Petitioner’s Petition for Writ of Habeas Corpus,
Filing No. 1, brought pursuant to 28 U.S.C. § 2254.
For the reasons set forth below, the motion to appoint counsel shall be
denied without prejudice. On preliminary review the Court determines that
Petitioner’s claims, when liberally construed, are potentially cognizable in
federal court and the Petition shall progress consistent with this Memorandum
and Order.
I. MOTION TO APPOINT COUNSEL
Petitioner seeks appointment of counsel arguing that appointment is
appropriate due to the legal complexities in his case. Filing No. 4. Petitioner
spends multiple pages outlining the legal issues in his Petition and submits
that the appointment of counsel is necessary to provide him a fundamentally
fair review and a meaningful opportunity to be heard. Filing No. 4 at 1.
“[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 finds there is no need for the appointment of counsel at this
early stage in the proceedings as Respondent has not yet addressed the
Petition. The motion for counsel shall therefore be denied without prejudice.
II. PRELIMINARY REVIEW
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 a fair trial because the trial
court erred in determining there was sufficient
evidence to instruct the jury that witness “S.M.” was
both incapable of resisting and did not consent.1
Petitioner raises a claim of trial court’s jury
instruction regarding capability of consent was in
error.

Claim Two:

The

jury

selection

in

Petitioner’s

trial

was

unconstitutional due to the disqualification of nonwhites based on their felony status.

1 See Filing No. 1 at 2, 5; State v. Npimnee, 2 N.W.3d 620 (Neb. 2024).

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Claim Three:

The trial court erred by restricting cross examination
of witness “S.M.,” denying Petitioner the ability to
impeach the witness.

Claim Four:

Petitioner received ineffective assistance of appellate
counsel because appellate counsel failed to specifically
allege trial counsel’s deficient performance on direct
appeal.

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.
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.

By April 17, 2025, 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 17, 2025: deadline for Respondent to file state court
records in support of answer or motion for summary judgment.

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3.

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.

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 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
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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 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.
4.

If Respondent elects to file an answer, the following procedures

must be followed by Respondent and Petitioner:
A.

By April 17, 2025, 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
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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, nonretroactivity, 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 with a copy of the specific pages of the
designated record that are cited in Respondent’s 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.
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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 19, 2025: check for Respondent’s answer and separate
brief.

5.

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.
6.

Petitioner’s motion seeking the appointment of counsel, Filing No.

4, is denied without prejudice.

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Dated this 5th day of March, 2025.
BY THE COURT:
John M. Gerrard
Senior United States District Judge

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