United States District Court, D. Nebraska
DAMON D. PIGEE, Petitioner,
SCOTT R. FRAKES, Director, Respondent.
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 four claims.
and summarized for clarity, the claims asserted by Petitioner
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.
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. 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
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 ...