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Rayes v. Sabatka-Rine

United States District Court, D. Nebraska

October 3, 2014

RICHARD RAYES, Petitioner,
v.
DIANE SABATKA-RINE, Warden, NEBRASKA STATE PENITENTIARY, MICHAEL KENNEY, Director, and NEBRASKA DEPARTMENT OF CORRECTIONAL SERVICES, Respondents.

MEMORANDUM AND ORDER

LAURIE SMITH CAMP, Chief District Judge.

This matter is before the court on Petitioner's response (Filing No. 17) to the Court's initial review of the petition for writ of habeas corpus filed in this matter. Also pending are Petitioner's requests that the undersigned judge recuse herself, appoint counsel, and order prison officials to give him access to various legal resources ( see Filing Nos. 15, 16, and 17).

I. BACKGROUND

On September 11, 2014, the Court conducted an initial review of Petitioner's Petition for Writ of Habeas Corpus brought pursuant to 28 U.S.C. ยง 2254. The Court determined Petitioner had asserted the following claims in his petition and in a supplementary pleading:

Claim One: Petitioner's good-time credits were improperly forfeited because the director of the Nebraska Department of Correctional Services ("NDCS") did not personally approve the forfeiture of the good-time credits. (Filing No. 1 at ECF 1-3.)
Claim Two: Petitioner was convicted of arson in 1988 in violation of his due process rights under the Fourteenth Amendment because the prosecution refused to provide the defense with Petitioner's medical records. (Filing No. 1 at ECF 5-8, 11.)
Claim Three: NDCS officials deprived Petitioner of earned good-time credits in violation of his due process rights under the Fourteenth Amendment. (Filing No. 9 at ECF 1-15.)

(Filing No. 14 at CM/ECF 1-2.)

In the Court's initial review of the petition, the Court determined that Claim Three was potentially cognizable in a federal habeas corpus action. However, with respect to Claim One, the Court determined it was not cognizable in an action for writ of habeas corpus because Petitioner had only argued that a state court improperly applied state law. With respect to Claim Two, the Court ordered Petitioner to show cause why it should not be dismissed as barred by the governing statute of limitations. (Filing No. 14 at ECF 3-5.)

II. RESPONSE TO ORDER ON INITIAL REVIEW

In Petitioner's response to the Court's initial review, Petitioner amended Claim One to assert a federal due process claim. In addition, with respect to Claim Two, Petitioner argued he is entitled to statutory and equitable tolling of the limitations period. (Filing No. 17 at ECF 2-3.) In light of these arguments, the Court finds that Claims One and Two are potentially cognizable in a federal habeas corpus action as federal due process claims.

III. REQUEST FOR APPOINTMENT OF COUNSEL

Petitioner requests the appointment of counsel ( see Filing Nos. 16 and 17). As already explained to Petitioner, "[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 ...


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