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Marchese v. Gage

United States District Court, D. Nebraska

May 23, 2016

SAMUEL J. MARCHESE, Petitioner,
v.
BRIAN GAGE, Warden of the Tecumseh State Correctional Institution, Respondent.

          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 five claims.

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

Claim One: Petitioner was the victim of prosecutorial misconduct because (1) the prosecution breached the plea agreement; (2) the prosecution misrepresented and/or altered the terms of the plea agreement; (3) the prosecution did not inform Petitioner of his right to withdraw his plea; (4) the prosecutor induced Petitioner to accept the plea agreement; and (5) the prosecutor knowingly used a forged letter at sentencing.
Claim Two: The trial court violated Petitioner’s constitutional right to due process and a fair trial by (1) allowing the prosecutor to breach the plea agreement; (2) imposing an excessive sentence; (3) failing to inform Petitioner of his right to withdraw his plea; (4) allowing the introduction of a forged letter into evidence; (5) failing to recognize that Petitioner’s plea was not intelligently and voluntarily given; (6) failing to inform Petitioner of the penal consequences of his plea; and (7) failing to advise Petitioner of his constitutional rights and that Petitioner was waiving those rights by entering a plea.
Claim Three: Petitioner was denied effective assistance of trial counsel because Petitioner’s attorney (1) forced Petitioner to accept the plea agreement; (2) failed to object to the prosecutor’s breach of the plea agreement or move to withdraw the plea; (3) failed to adequately explain the terms of the plea agreement; (4) gave faulty legal advice by telling Petitioner that he had to respond affirmatively to questions asked by the judge at the plea hearing; (5) failed to raise the insanity defense; (6) failed to conduct a thorough investigation of Petitioner’s case; (7) failed to object to the use of victim impact evidence at sentencing; (8) advised Petitioner that he could not speak at the sentencing hearing; (9) failed to fully explain the potential consequences of a guilty or no contest plea; (10) failed to object to the trial judge’s imposition of an excessive sentence; (11) allowed Petitioner to plead no contest to kidnaping charges despite knowing Petitioner was innocent; and (12) told Petitioner’s father not to attend the plea proceedings.
Claim Four: Petitioner was denied effective assistance of appellate counsel because Petitioner’s appellate attorney (1) did not perfect Petitioner’s direct appeal; (2) failed to communicate with Petitioner and consult with him regarding the need for an appeal; and (3) failed to raise the following issues on appeal: (a) the prosecutor’s breach of the plea agreement, (b) the trial judge’s imposition of an excessive sentence, (c) the trial judge’s admission of a forged document into evidence, (d) Petitioner’s innocence of the kidnaping charge, (e) the trial judge’s improper acceptance of Petitioner’s plea, (f) the involuntariness of the plea, and (g) the ineffectiveness of trial counsel.
Claim Five: Petitioner is actually innocent.

         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 filed a Motion for Appointment of Counsel. (Filing No. 4.) “[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. 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 Attorney General by regular first-class mail.

         3. By July 7, 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: July 7, 2016: deadline for Respondent ...


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