United States District Court, D. Nebraska
Richard G. Kopf, Senior United States District Judge.
matter is before the court on preliminary review of
Petitioner Shiflett's Petition for Writ of Habeas Corpus
(Filing No. 1, Part 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:
Petitioner, unjustifiably refused protective custody, was
denied due process of law when 30 days of good time credit
was taken from him thus lengthening his time in prison after
Petitioner justifiably refused an order to return to general
population as he feared for his safety.
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. 1,
Part 2) “[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. 1,
Part 1), the court preliminarily determines that
Petitioner's claims, as they are set forth in this
Memorandum and Order, are potentially cognizable in federal
August 20, 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: August 20, 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 time the motion is filed.
B. The motion for summary judgment must be supported by any
state court records that are necessary to support the motion.
Those records must be contained in a separate filing
entitled: “Designation of State Court Records in
Support of Motion for Summary Judgment.”
C. Copies of the motion for summary judgment, the
designation, including state court records, and
Respondent's brief must be served on Petitioner
except that Respondent is only required to provide
Petitioner with a copy of the specific pages of the record
that are cited in Respondent's motion and brief. In the
event that the designation of state court records is deemed
insufficient by Petitioner or Petitioner needs additional
records from the designation, Petitioner may file a motion
with the court requesting additional documents. Such motion
must set forth the documents requested and the reasons the
documents are relevant to the cognizable claims.
D. No. later than 30 days following the filing of the motion
for summary judgment, Petitioner must file and serve a brief
in opposition to the motion for summary judgment. Petitioner
may not submit other documents unless directed to do so by
E. No later than 30 days after Petitioner's brief is
filed, Respondent must file and serve a reply brief. In the
event that Respondent elects not to file a reply brief, he
should inform the court by filing a notice stating that he
will not file a reply brief ...