United States District Court, District of Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge
Petitioner has filed a Petition for Writ of Habeas Corpus. (Filing No. 1.) The court has conducted an initial review of the Petition for Writ of Habeas Corpus to determine whether the claims made by Petitioner are, when liberally construed, potentially cognizable in federal court. Petitioner asserts one claim: Petitioner is being held “on an invalid incomplete sentencing/Committment [sic] order, in violation of his fifth amendment rights under the United States Constitution.” (Id. at CM/ECF p. 1.)
Liberally construed, the court preliminarily decides that Petitioner’s claim is potentially cognizable in federal court. However, the court cautions that no determination has been made regarding the merits of the claims or any defenses to it or whether there are procedural bars that will prevent Petitioner from obtaining the relief sought.
Petitioner also seeks the appointment of counsel. (Filing No. 3.) “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 THEREFORE ORDERED that:
1. Upon initial review of the habeas corpus petition (Filing No. 1), the court preliminarily determines that Petitioner’s claim is potentially cognizable in federal court.
2. The Clerk of Court is directed to mail copies of this Memorandum and Order and the habeas corpus petition to Respondents and the Nebraska Attorney General by regular first-class mail.
3. By January 29, 2015, Respondents 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 pro se case management deadline in this case using the following text: January 29, 2015: deadline for Respondents to file state court records in support of answer or motion for summary judgment.
4. If Respondents elect to file a motion for summary judgment, the following procedures shall be followed by Respondents 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 Respondents’ brief shall be served upon Petitioner except that Respondents are only required to provide Petitioner with a copy of the specific pages of the record which are cited in Respondents’ 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. Such motion shall set forth the documents requested and the reasons the documents are relevant to the cognizable claims.
D. No later than 30 days following the filing of the motion for summary judgment, Petitioner shall file and serve a brief in opposition to the motion for summary judgment. Petitioner shall submit no other documents unless directed to do so by the court.
E. No later than 30 days after the filing of Petitioner’s brief, Respondents shall file and serve a reply brief. In the event that Respondents elect not to file a reply brief, they should inform the court by filing a notice stating that they will not file a ...