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Tyrrell v. Frakes

United States District Court, D. Nebraska

January 2, 2019

GREGORY B. TYRRELL, Petitioner,
v.
SCOTT R. FRAKES, and NEBRASKA PAROLE BOARD, Respondents.

          MEMORANDUM AND ORDER

          Richard G. Kopf Senior United States District Judge

         This matter is before the court on preliminary review of Petitioner Gregory B. Tyrrell'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 regarding the revocation of his parole are:

CLAIM ONE: It was a violation of Petitioner's First Amendment rights to revoke his parole simply because he had initial communications with Ms. Cerna over the internet on a dating website.
CLAIM TWO: The conditions of parole imposed on Petitioner were unconstitutionally vague and over broad.
CLAIM THREE: It was a violation of Due Process to revoke Petitioner's parole without sufficient evidence. In particular, Petitioner was in compliance with the Sanction Agreement dated August 8, 2018 (Review of Parole Hearing transcript, page 8).
CLAIM FOUR: It was a violation of Due Process to find Petitioner guilty of violating two uncharged allegations, to wit:
Special Conditions five and six on pages 10 and 11 of the transcript.
CLAIM FIVE: It was a violation of Due Process for the Nebraska Parole Board to determine that Petitioner was a threat to public safety when that determination was made without sufficient evidence.
CLAIM SIX: It was a violation of Due Process to find Petitioner guilty and revoke his parole for invalid conditions of parole when the “Parole Officers/Witness” failed to sign the agreement (page 11 of the transcript).

         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. 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. By February 19, 2019, 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: February 19, 2019: deadline for ...


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