The opinion of the court was delivered by: Richard G. Kopf Senior United States District Judge
The court has conducted an initial review of the Petition for Writ of Habeas Corpus (filing no. 1) to determine whether the claims made by Petitioner are, when liberally construed, potentially cognizable in federal court. Liberally construed, Petitioner asserts two claims.
Claim One: Petitioner was denied the effective assistance of counsel in violation of the Sixth and Fourteenth Amendments because his trial counsel (1) stipulated that Petitioner had been convicted of a felony in 2003, and (2) failed to request a hearing regarding evidence improperly admitted under Federal Rule of Evidence 404. (Filing No. 1 at CM/ECF pp. 17-32.)
Claim Two: Petitioner was denied due process in violation of the Fourteenth Amendment because (1) the Nebraska Supreme Court incorrectly applied federal law, specifically Miranda v. Arizona, 384 U.S. 436 (1966), (2) the evidence was insufficient as a matter of law to support Petitioner's conviction, (3) the evidence used at trial was inadmissible under Federal Rule of Evidence 404, and (4) the Nebraska Supreme Court added evidence that was not used at trial in order to find that the evidence at trial was sufficient to support his conviction. (Id. at CM/ECF pp. 32-49.)
The court preliminarily decides that Petitioner's claims One and Two, as set forth in this Memorandum and Order, are potentially cognizable in federal court. However, the court cautions Petitioner that no determination has been made regarding the merits of his claims or any defenses thereto or whether there are procedural bars that will prevent Petitioner from obtaining the relief sought.
Also pending is Petitioner's Motion to Appoint Counsel. (Filing No. 3.) "[T]here is neither a constitutional nor statutory right to counsel in habeas proceedings; instead, [appointment of counsel] is committed to the discretion of the trial court." McCall v. Benson, 114 F.3d 754, 756 (8th Cir. 1997) (citations omitted). 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); 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). Upon review of the pleadings and Petitioner's Motion, there is no need for the appointment of counsel at this time.
IT IS THEREFORE ORDERED that:
1. Upon initial review of the Petition (filing no. 1), the court preliminarily decides that Petitioner's claims are potentially cognizable in federal court.
2. The Clerk of the court is directed to mail copies of this Memorandum and Order and the Petition (filing no. 1) to Respondents and the Nebraska Attorney General by regular first-class mail.
3. By June 27, 2013, Respondent shall 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: June 27, 2013: deadline for Respondent to file state court records in support of answer or motion for summary judgment.
4. 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 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 shall be served upon Petitioner except that Respondent is only required to provide Petitioner with a copy of the specific pages of the record which are cited in Respondent's brief. In the event that the designation of state court records is deemed insufficient by Petitioner, Petitioner may file a motion with the court requesting additional documents. ...