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Jones v. State

United States District Court, D. Nebraska

December 19, 2018

LARON M. JONES, Petitioner,
v.
STATE OF NEBRASKA, SCOTT R. FRAKES, Director, Nebraska Correctional Services; and MICHELL CAPPS, Warden, Nebraska State Penitentiary; Respondents.

          MEMORANDUM AND ORDER

          Richard G. Kopf, Senior United States District Judge.

         This matter is before the court on preliminary review of Petitioner Laron M. Jones' Amended Petition for Writ of Habeas Corpus[1] (filing no. 10) 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 effective assistance of counsel and a fair trial because trial counsel (1) failed to suppress, object to, and properly impeach the identification testimony of witnesses Alanna Delany, Saraha Richards, Dale Gaver, and Giovanni Barrios (filing no. 10 at CM/ECF pp. 21-34); (2) failed to file a motion to dismiss (id. at CM/ECF pp. 34-35); (3) failed to properly investigate and call numerous witnesses provided to counsel by Petitioner who were important to Petitioner's alibi defense (id. at CM/ECF pp. 36-41); and (4) generally failed to conduct an adequate pretrial investigation and to gather defense evidence (id. at CM/ECF pp. 41-45).
Claim Two: Petitioner's right to due process was violated when the prosecution failed to disclose (1) the recording of Petitioner's police interview and (2) the photographic line up shown to Jenna McBride in violation of Brady. (Id. at CM/ECF pp. 63-67.)
Claim Three: Petitioner was denied effective assistance of counsel because appellate counsel failed to raise on direct appeal that trial counsel was ineffective (1) for the reasons set forth in Claim One and (2) for failing to raise Brady violations. (Id. at CM/ECF pp. 69-70.)
Claim Four: Petitioner was denied due process and the right to a fair trial because (1) Nebraska's second-degree murder statute is facially unconstitutional as it does not provide fair warning sufficient to prevent arbitrary enforcement (id. at CM/ECF pp. 73-89) and (2) the substantive change to the elements of second degree murder and sudden quarrel manslaughter is a new rule of constitutional law that should be applied retroactively to Petitioner (id. at CM/ECF pp. 93-95).
Claim Five: Petitioner was denied due process and the right to a fair trial because the trial court committed plain error in giving Jury Instruction No. 8. (Id. at CM/ECF pp. 99- 101.)
Claim Six: Petitioner was denied the right to a fair trial because the state district court presiding over Petitioner's postconviction proceedings: (1) erred in finding that issues raised by Petitioner in his postconviction motion were or could have been litigated on direct appeal (id. at CM/ECF pp. 96-98); (2) committed plain error in denying Petitioner's postconviction motion (id. at CM/ECF pp. 101-02); and (3) committed plain error in determining that DNA placed Petitioner at the scene of the crime (id. at CM/ECF pp. 102-03).

         With the exception of Claim Six, the court determines that Petitioner's 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. Claim Six is not a cognizable habeas corpus claim because it is based on errors in the state postconviction proceedings. Errors during state postconviction review are not cognizable in a federal habeas corpus action. See Jenkins v. Houston, 4:05CV3099, 2006 WL 126632 (D. Neb. 2006) (collecting cases). Claim Six is dismissed.

         Petitioner also 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. Petitioner's motion is denied without prejudice to reassertion.

         IT IS THEREFORE ORDERED that:

         1. Petitioner's Motion for Appointment of Counsel (filing no. 3) is denied without prejudice to reassertion.

         2. Upon initial review of the habeas corpus petition (filing no. 10), the court preliminarily determines that Petitioner's claims, as they are set forth in this Memorandum and Order, are potentially cognizable in federal court with the exception of Claim Six. Claim Six is dismissed.

         3. By February 4, 2019, 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 4, 2019: deadline for ...


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