United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge
matter is before the court on preliminary review of
Petitioner Leodan Alarcon-Chavez's Petition for Writ of
Habeas Corpus (Filing No. 1) brought pursuant to
28 U.S.C. § 2254. The purpose of this review is
to determine whether Petitioner's claims, when liberally
construed, are potentially cognizable in federal court.
Condensed and summarized for clarity, Petitioner's claims
Claim One: Petitioner was denied his right to due process
under the 5th, 6th, and 14th Amendments because the trial
court erred in rejecting Petitioner's proposed jury
instruction and failing to find the entire step instruction
was an incorrect statement of law.
Claim Two: Petitioner was denied his right to be free from
unreasonable searches and seizures under the 4th and 14th
Amendments because the trial court erred in overruling
Petitioner's amended motion to suppress based on an
unauthorized seizure of Petitioner's vehicle without a
Claim Three: Petitioner was denied his right to a fair trial
under the 5th, 6th, and 14th Amendments because of the
prosecutor's inflammatory remarks made during his closing
and rebuttal arguments.
Claim Four: Petitioner was denied his rights to due process
and to effective assistance of counsel under the 5th, 6th,
and 14th Amendments because trial counsel failed to (1)
verify, ensure, and/or preserve the making of an official
record of the voir dire proceeding, (2) raise a challenge
under Batson v. Kentucky, 476 U.S. 79 (1986), when
the State struck a Hispanic juror from the venire; (3)
communicate plea offers; (4) speak with witnesses provided by
Petitioner; (5) advise Petitioner of his right to
independently test DNA, (6) advise Petitioner of his right to
depose the State's expert witnesses, and (7) object
during trial to the State's questioning of key witnesses
and offers of exhibits.
Claim Five: Petitioner was denied his rights to due process
and to a fair trial under the 5th, 6th, and 14th Amendments
because he could not understand one of the trial court
court determines that these claims, when liberally construed,
are potentially cognizable in federal court. However, the
court cautions Petitioner that no determination has been made
regarding the merits of these claims or any defenses to them
or whether there are procedural bars that will prevent
Petitioner from obtaining the relief sought.
requests the appointment of counsel. (Filing No. 3).
“[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 habeas corpus petition (Filing No.
1), the court preliminarily determines that
Petitioner's claims, as they are set forth in this
Memorandum and Order, are potentially cognizable in federal
Petitioner's Motion to Appoint Counsel (Filing No.
3) is denied without prejudice to reassertion.
February 26, 2018, Respondents 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: February 26, 2018: deadline for
Respondents to file state court records in support of answer
or motion for summary judgment.
Respondents elect to file a motion for summary judgment, the
following procedures must be ...