United States District Court, D. Nebraska
EMMANUEL S. YANGA, Petitioner,
STATE OF NEBRASKA, DIR. SCOTT FRAKES, and MADSEN, Warden, Respondents.
Richard G. Kopf Senior United States District Judge.
matter is before the court on preliminary review of
Petitioner Emanuel S. Yanga's Petition for Writ of Habeas
Corpus (Filing No. 13) 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.
and summarized for clarity, the claims asserted by Petitioner
regarding the state felony case in the District Court of
Lancaster County, Nebraska (district court #CR14-1382 and
appeal to the Nebraska Court of Appeals #A-17-655) are set
Claim One: Both trial counsel and appellate
counsel provided ineffective assistance of counsel under the
Claim Two: The prosecutor engaged in
prosecutorial misconduct in violation of the Due Process
Claim Three: The trial court abused its
discretion in violation of the Due Process Clause.
Claim Four: The Petitioner was denied Due
Process of law and Equal Protection of the law when the jury
was not properly instructed.
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.
has also filed a Motion to Appoint 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
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. 13),
the court preliminarily determines that Petitioner's
claims, as they are set forth in this Memorandum and Order,
are potentially cognizable in federal court.
May 21, 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: May 21, 2018: 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 ...