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Simnick v. Gage

United States District Court, Eighth Circuit

October 15, 2013

KEVIN A. SIMNICK, Petitioner,
v.
BRIAN GAGE, Respondent.

MEMORANDUM AND ORDER

LAURIE SMITH CAMP, 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. Condensed and summarized for clarity, Petitioner's claims are set forth below.

Claim One: Petitioner was denied due process of law in violation of the Fourteenth Amendment because the trial court lacked subject-matter jurisdiction to try the case. ( Id. at CM/ECF pp. 20-21.)
Claim Two: Petitioner was denied due process of law in violation of the Fourteenth Amendment because the prosecutor was allowed to file an information that was insufficient and defective. ( Id. at CM/ECF pp. 21-24.)
Claim Three: Petitioner was denied due process of law in violation of the Fourteenth Amendment because the prosecutor withheld exculpatory evidence. ( Id. at CM/ECF pp. 24-25.)
Claim Four: Petitioner was denied due process of law in violation of the Fourteenth Amendment because his plea "was not voluntarily, knowingly, understandingly and intelligently made." ( Id. at CM/ECF pp. 26-29.)
Claim Five: Petitioner was denied due process of law in violation of the Fourteenth Amendment because the prosecution induced him into pleading guilty by misrepresenting a plea agreement that it later breached. ( Id. at CM/ECF pp. 29-30.)
Claim Six: Petitioner was denied the effective assistance of counsel in violation of the Sixth and Fourteenth Amendments because trial counsel failed to (a) object to the lack of the trial court's subject matter jurisdiction; (b) advise him of the true nature of the charge before he pled; (c) inform him of the penalties of the charge before he pled; (d) object to the invalid factual basis for the plea; (e) object to the breach of the plea agreement at sentencing; (f) contest the insufficient and defective information; and (g) conduct a reasonable investigation into the case. ( Id. at CM/ECF pp. 30-37.)
Claim Seven: Petitioner was denied the effective assistance of counsel in violation of the Sixth and Fourteenth Amendments because appellate counsel failed to "raise or properly argue meritorious claims on direct appeal." ( Id. at CM/ECF p. 38.)

Liberally construed, the Court preliminarily decides that Petitioner's seven claims 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 No. 2.) "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, 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). 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 that there is no need for the appointment of counsel at this time.

IT IS ORDERED:

1. Upon initial review of the Petition (Filing No. 1), the Court preliminarily determines that Claims One through Seven, as set forth in this Memorandum and Order, are potentially cognizable in federal court.

2. The Clerk's Office is directed to mail copies of this Memorandum and Order and the Petition to Respondent and the Nebraska Attorney ...


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