United States District Court, D. Nebraska
GREGORY B. TYRRELL, Petitioner,
SCOTT R. FRAKES, and NEBRASKA PAROLE BOARD, Respondents.
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge
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
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
Special Conditions five and six on pages 10 and 11 of the
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).
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. 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.
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