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Marco Enrique Torres, Jr. v. Robert Houston

February 27, 2013

MARCO ENRIQUE TORRES, JR. PETITIONER,
v.
ROBERT HOUSTON RESPONDENT.



The opinion of the court was delivered by: F.A. Gossett United States Magistrate Judge

MEMORANDUM AND ORDER

The Court has conducted an initial review of the Petition for Writ of Habeas Corpus (filing 1) to determine whether the claims made by Petitioner are, when liberally construed, potentially cognizable in federal court. Petitioner has made three claims. Condensed and summarized for clarity, the claims asserted by Petitioner are:

Claim One: Petitioner was denied due process because the State of Nebraska withheld over 800 pages of documents (Brady violation) which prevented him from preparing a proper defense. Claim Two: Petitioner received ineffective assistance of counsel in violation of the Sixth Amendment because trial counsel (1) failed to conduct an independent investigation or perform adequate discovery; (2) failed to call witnesses who could have contradicted testimony of the state's witnesses; and (3) failed to develop a viable defense in advance of trial. Claim Three: Petitioner was denied due process of law because the court considered opinion testimony of attorneys who were not part of the kidnapping case.

Liberally construed, the Court preliminarily decides that Claims One, Two, and Three, as set forth in this Memorandum and Order, are potentially cognizable in federal court. However, the Court cautions that no determination has been made regarding the merits of these claims or any defenses thereto or whether there are procedural bars that will prevent Petitioner from obtaining the relief sought.

Petitioner also seeks the appointment of counsel. (Filing 4.) "[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) (citations omitted). The Court has carefully reviewed the record and finds that there is no need for the appointment of counsel at this time.

Accordingly,

IT IS ORDERED:

1. Upon initial review of the Petition (filing 1), the Court preliminarily determines that Petitioner's claims, as set forth in this Memorandum and Order, are potentially cognizable in federal court.

2. Petitioner's Motion for Appointment of Counsel (filing 4) is denied without prejudice to reassertion.

3. The Clerk of Court is directed to mail copies of this Memorandum and Order and the Petition to Respondent and the Nebraska Attorney General by regular first-class mail.

4. By April 16, 2013, Respondent shall file a motion for summary judgment or state court records in support of an answer. The Clerk of Court is directed to set a case management deadline in this case using the following text: April 16, 2013: deadline for Respondent to file state court records in support of answer or motion for summary judgment.

5. If Respondent elects to file a motion for summary judgment, the following procedures shall be followed by Respondent and Petitioner:

A. The motion for summary judgment shall be accompanied by a separate brief, submitted at the time of the filing of the motion.

B. The motion for summary judgment shall be supported by such state court records as are necessary to support the motion. Those records shall be contained in a separate filing entitled: "Designation of State ...


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