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. It appears Petitioner has made six claims.
Condensed and summarized for clarity, the claims asserted by Petitioner are:
Claim One: Petitioner’s right to confrontation was violated because (1) he was prevented from questioning a lab analyst whose report was admitted into evidence at trial; (2) the trial court allowed the testimony of a confidential informant; (3) the trial court admitted hearsay evidence; and (4) the trial court prevented him from questioning “Mrs Harris.”
Claim Two: Petitioner was denied effective assistance of trial counsel because Petitioner’s attorney (1) did not file a motion to dismiss or motion for new trial based on insufficiency of evidence, the prosecutor’s failure to produce the lab analyst to testify, the prosecutor’s failure to notify defense counsel that the lab analyst’s report would be offered at trial, and the prosecutor’s failure to demonstrate that non- testifying witnesses were unavailable for trial; (2) did not discover the identity of the confidential informant; (3) failed to object to the habitual criminal enhancement; (4) failed to object based on hearsay and the violation of Petitioner’s right to confront witnesses; (5) failed to move to exclude police officer testimony regarding statements made by non-testifying witnesses; and (6) failed to move to exclude the lab analyst’s report.
Claim Three: Petitioner was denied effective assistance of appellate counsel because counsel (1) failed to raise the issue of vindictive prosecution; and (2) failed to raise all arguments regarding trial counsel’s deficient performance as set forth in Claim Two herein.
Claim Four: Petitioner was denied the right to a fair trial and an impartial judge.
Claim Five: Petitioner was subjected to an illegal search and seizure by police.
Claim Six: Petitioner was vindictively prosecuted.
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 thereto or whether there are procedural bars that will prevent Petitioner from obtaining the relief sought.
Petitioner has also filed a Motion to Appoint Counsel. (Filing No. 7.) “[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. By June 30, 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: June 30, 2016: deadline for Respondent to ...