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Pigee v. Frakes

United States District Court, D. Nebraska

November 30, 2017

DAMON D. PIGEE, Petitioner,
v.
SCOTT R. FRAKES, Director, Respondent.

          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 four claims.

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

Claim One: Petitioner was denied due process because: (a) he was threatened by the prosecutor regarding the filing of a habitual criminal charge; (b) the prosecutor misstated the factual basis for the guilty plea; and (c) the prosecutor provided false information to the judge at the time of sentencing.
Claim Two: Petitioner was denied effective assistance of trial counsel because (a) counsel did not object to the amended information; (b) counsel used a letter from the prosecutor (presumably Filing No. 1 at CM/ECF p. 49) to coerce Petitioner to enter a guilty plea; (c) counsel failed to object to and request a continuance regarding the judge's uncertainty about whether sentences could be run concurrently; (d) counsel failed to move to withdraw the plea when Petitioner informed counsel about the location of a “new suspect”; (e) counsel failed to object to statements made by the sentencing judge (see Filing No. 1 at CM/ECF p. 17 (¶ “5") & p. 18 (¶ “8"); (f) counsel failed to object to the insufficient factual basis for the plea; (g) counsel failed to investigate and depose Donald Mann who authored a police report; (h) counsel failed to object to the prosecutor's statement at sentencing regarding “opportunity for change . . .”.
Claim Three: Petitioner was denied due process because (a) at the time of the plea, Petitioner was not clearly advised as to whether the sentences could run concurrently and (b) the trial judge did not act in a fair and impartial manner at the time of sentencing.
Claim Four: Petitioner was denied effective assistance of appellate counsel (who was different than trial counsel) for failing to raise on direct appeal Claims One, Two and Three.

         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. 5.) “[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.

         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 January 16, 2018, 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: January 16, 2018: 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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