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Smith v. Frakes

United States District Court, D. Nebraska

January 24, 2017

WILLIAM E. SMITH, Petitioner,
v.
SCOTT R. FRAKES, 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. It appears Petitioner has made two claims.

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

Claim One:Keeping in mind State v. Smith, 811 N.W.2d 720
(Neb. Ct. App.2012) and State v. Smith, 822 N.W.2d 401 (Neb. 2012), affirming the assault and weapons conviction, but reversing and remanding for a new trial the attempted second degree murder conviction, Petitioner was: (a) denied due process of law when the assault and weapons convictions were not also reversed; (b) was denied effective assistance of trial counsel regarding the assault and weapons convictions; (c) was denied due process of law regarding the assault and weapons convictions because of the multiple suggestive lineups that took place prior to the in-court identification.
Claim Two:Regarding the proceedings on remand for attempted second degree murder, Petitioner's entry into a plea agreement in those proceedings was induced by ineffective assistance of counsel.

         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. 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. By March 10, 2017, 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:

March 10, 2017: deadline for Respondent to file state court records in support of answer or motion for summary judgment.

         3. If Respondent elects to file a motion for summary judgment, the following procedures must be followed by Respondent and Petitioner:

A. The motion for summary judgment must be accompanied by a separate brief, submitted at the ...

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