United States District Court, D. Nebraska
ALBERTO C. MAGALLANES, Petitioner,
ROBERT MADSEN, Nebraska State Penitentiary Warden, 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 three claims.
and summarized for clarity, the claims asserted by Petitioner
Claim One: The prosecution in state court
followed the dismissal of a similar prosecution in this
federal court (8:10-cr-00107) where this court suppressed
evidence eventually resulting in a voluntary dismissal by the
United States under Federal Rule of Criminal Procedure
48(a) and therefore the subsequent prosecution in the
state court violated the Constitution, for among other
reasons, because it (a) placed Petitioner in jeopardy twice
and (b) denied Petitioner due process of law. Cf.
Chavez v. Weber, 497 F.3d 796 (8th Cir. 2007).
Claim Two: Trial and appellate counsel were
both ineffective for failing to assert objections to the
state prosecution on the basis of the arguments advanced in
Claim Three: Neb. Rev. Stat. §
60-6, 142 (West) (driving on highway shoulders
prohibited), the basis for the traffic stop, is
unconstitutionally vague and overbroad and thus the
prosecution predicated upon evidence derived from the traffic
stop violated the Constitution, for among other reasons,
because it: (a) denied petitioner due process of law; and (b)
denied Petitioner the right to be free from unreasonable
search and seizure.
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.
6.) “[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
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.
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.
November 3, 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:
November 3, 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 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 Records in
Support of Motion for Summary Judgment.” C. Copies of
the motion for summary judgment, the designation, including
state court records, and Respondent's brief must be
served on Petitioner except that Respondent is only
required to provide Petitioner with a copy of the specific
pages of the record that are cited in Respondent's brief.
In the event that the designation of state court records is
deemed insufficient by Petitioner, Petitioner may file a