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Kettle v. State

United States District Court, Eighth Circuit

January 14, 2014

BYRON K. RED KETTLE, Petitioner,
v.
STATE OF NEBRASKA, Respondent.

MEMORANDUM AND ORDER

LYLE E. STROM, Senior District Judge.

Petitioner has filed an Amended Petition for Writ of Habeas Corpus (Filing No. 18). The Court has conducted an initial review of the Amended Petition for Writ of Habeas Corpus to determine whether the claims made by petitioner are, when liberally construed, potentially cognizable in federal court. The claims asserted by petitioner are:

Claim One: Petitioner was denied a fair trial in violation of the Sixth and Fourteenth Amendments because the trial court allowed the State of Nebraska to rely on statutory law that did not require corroboration of a rape victim's testimony, and this statutory law was enacted during the pendency of petitioner's criminal proceedings. ( Id. at CM/ECF pp. 5, 16-17.)
Claim Two: Petitioner was denied his right to a speedy trial in violation of the Sixth and Fourteenth Amendments. ( Id. at CM/ECF pp. 7, 18-20.)
Claim Three: Petitioner received the ineffective assistance of counsel in violation of the Sixth and Fourteenth Amendments because trial counsel did not protect petitioner's right to a speedy trial. ( Id. at CM/ECF pp. 18 at CM/ECF pp. 8, 21-22.)
Claim Four: Petitioner received the ineffective assistance of counsel in violation of the Sixth and Fourteenth Amendments because appellate counsel did not argue on direct appeal that petitioner's right to a speedy trial had been violated. ( Id. )

Liberally construed, the Court preliminarily decides that petitioner's 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 to them or whether there are procedural bars that will prevent petitioner from obtaining the relief sought.

Petitioner seeks the appointment of counsel (Filing No. 20). "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 amended habeas corpus petition (Filing No. 18), the Court preliminarily determines that petitioner's claims, as set forth in this memorandum and order, are potentially cognizable in federal court.

2. The clerk of the court is directed to mail copies of this memorandum and order and the amended section 2254 petition to respondent and the Nebraska Attorney General by regular first-class mail.

3. By February 24, 2014, 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: February 24, 2014: 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 ...

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