United States District Court, D. Nebraska
WILLIAM E. SMITH, Petitioner,
SCOTT R. FRAKES, Respondent.
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. It appears
Petitioner has made two claims.
and summarized for clarity, the claims asserted by Petitioner
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
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.
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 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.
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.
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.
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 ...