United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf, Senior United States District Judge
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 two claims.
Condensed and summarized for clarity, the claims asserted by
Claim One: The trial court gave an improper jury instruction.
Claim Two: Petitioner was denied effective assistance of
trial counsel because Petitioner's attorney failed to
object to the erroneous jury instruction
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.
has indicated that he would like counsel appointed to
represent him in this matter. “[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
IS THEREFORE ORDERED that:
initial review of the Petition (Filing No. 1), the
court preliminarily determines that Petitioner's claims
are potentially cognizable in federal court.
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
November 25, 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: November 25, 2016: deadline for Respondent to file
state court records in support of answer or motion for
Respondent elects to file a motion for summary judgment, the
following procedures must be followed by Respondent and
A. The motion for summary judgment must be accompanied by a
separate brief, submitted at the time the motion is filed.
B. The motion for summary judgment must be supported by any
state court records that are necessary to support the motion.
Those records must be contained in a separate filing
entitled: “Designation of State Court ...