United States District Court, D. Nebraska
MEMORANDUM AND ORDER
RICHARD G. KOPF 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 four claims.
Condensed and summarized for clarity, the claims asserted by Petitioner are:
Claim One: Petitioner was deprived effective assistance of counsel in violation of the Sixth and Fourteenth Amendments because Petitioner’s attorney (1) induced Petitioner to enter a plea of no contest by telling him he would receive a competency hearing; (2) did not request a competency hearing, psychiatric examination or raise the issue of Petitioner’s competency; (3) allowed Petitioner to enter a plea despite knowledge of Petitioner’s incompetency or diminished mental state; (4) failed to obtain Petitioner’s medical records or consult with medical specialists or witnesses regarding Petitioner’s mental condition; (5) failed to raise a defense regarding Petitioner’s decreased mental capacity; (6) failed to investigate proper defenses; (7) failed to preserve the trial record for appeal; and (8) failed to request that Petitioner receive a competency hearing at the time of sentencing.
Claim Two: Petitioner was denied effective assistance of counsel because Petitioner’s appellate counsel refused to raise certain claims on appeal.
Claim Three: Petitioner was denied due process because the trial court failed to hold a competency hearing or determine whether Petitioner’s plea was voluntary based on the evidence regarding his mental condition.
Claim Four: Trial counsel’s deficient performance denied Petitioner due process.
Liberally construed, the court preliminarily decides that Petitioner’s four 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. By April 8, 2016, Respondent must 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: April 8, 2016: 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 must be followed ...