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King v. Gage

United States District Court, D. Nebraska

February 10, 2016

BUD LEE KING, Petitioner,
v.
BRIAN GAGE, Warden, Respondent.

MEMORANDUM AND ORDER

Joseph F. Bataillon 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. Petitioner has made five claims.

Condensed and summarized for clarity, the claims asserted by Petitioner are:

Claim One[1]: Petitioner was deprived the effective assistance of counsel because Petitioner’s trial attorney (1) failed to conduct a pretrial investigation and personally investigate the handling and/or reliability of evidence; (2) failed to subpoena, depose and/or call witnesses; (3) interfered with Petitioner’s rights during his plea hearing by pressuring Petitioner to accept a plea without waiting twenty-four hours; and (4) caused Petitioner to plead unknowingly and involuntarily.
Claim Two: Petitioner was prejudiced by the district court’s rulings and was convicted based on the district court’s mishandling of pretrial proceedings, thereby denying him due process, effective representation, and equal protection of the law.
Claim Three: Petitioner was deprived the effective assistance of counsel because Petitioner’s appellate counsel did not preserve appealable issues as requested, including the issues of judicial abuse, ineffective assistance of trial counsel, and double jeopardy.
Claim Four: Petitioner was convicted based on insufficient evidence and/or through mishandling of evidence.
Claim Five: Petitioner is actually innocent.

Liberally construed, the court preliminarily decides that all five of 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 thereto or whether there are procedural bars that will prevent Petitioner from obtaining the relief sought.

Petitioner has also filed a Motion for Appointment of Counsel. (Filing No. 5.) “[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 Courts (requiring appointment of counsel if an evidentiary hearing is warranted). The court has carefully reviewed the record and finds 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 determines that Petitioner’s claims are potentially cognizable in federal court.

2. Petitioner’s Motion for Appointment of Counsel (Filing No. 5) is denied without prejudice to reassertion.

3. The clerk of the court is directed to mail copies of this Memorandum and Order and the habeas corpus petition to Respondent and the Nebraska ...


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