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Alarcon-Chavez v. State

United States District Court, D. Nebraska

January 11, 2018

LEODAN ALARCON-CHAVEZ, Petitioner,
v.
THE STATE OF NEBRASKA, and SCOTT FRAKES, Director of the Nebraska Department of Corrections; Respondents.

          MEMORANDUM AND ORDER

          Richard G. Kopf Senior United States District Judge

         This 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 are:

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 warrant.
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 Spanish interpreters.

         The 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.

         Petitioner 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.

         IT IS THEREFORE ORDERED that:

         1. Upon 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 court.

         2. Petitioner's Motion to Appoint Counsel (Filing No. 3) is denied without prejudice to reassertion.

         3. By 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.

         4. If Respondents elect to file a motion for summary judgment, the following procedures must be ...


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