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Yanga v. State

United States District Court, D. Nebraska

April 4, 2018

EMMANUEL S. YANGA, Petitioner,
v.
STATE OF NEBRASKA, DIR. SCOTT FRAKES, and MADSEN, Warden, Respondents.

          ORDER

          Richard G. Kopf Senior United States District Judge.

         This 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.

         Condensed 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 forth below:

Claim One: Both trial counsel and appellate counsel provided ineffective assistance of counsel under the Sixth Amendment.
Claim Two: The prosecutor engaged in prosecutorial misconduct in violation of the Due Process Clause.
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.[1]

         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 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.

         IT IS THEREFORE ORDERED that:

         1. Upon 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.

         2. By 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.

         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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