United States District Court, D. Nebraska
DEVIN E. ANDERSON, Petitioner,
STATE OF NEBRASKA, and NEBRASKA MENTAL HEALTH BOARD, Respondents.
MEMORANDUM AND ORDER
RICHARD G. KOPF, SENIOR UNITED STATES DISTRICT JUDGE
matter is before the court on preliminary review of
Petitioner Devin E. Anderson's Petition for Writ of
Habeas Corpus (filing no. 1) brought pursuant to 28 U.S.C.
§ 2254. However, because the petition appears to attack
both Petitioner's present confinement in the Lincoln
Regional Center pursuant to a mental health board
commitment order and his judgment of conviction in the
District Court of Lancaster County, Nebraska, in No.
CR14-1334, the petition is improper.
2(e) of the Rules Governing Section 2254 Cases in the
United States District Courts states: “A
petitioner who seeks relief from judgments of more than one
state court must file a separate petition covering the
judgment or judgments of each court.”
Petitioner must file an amended petition that specifies
whether he is challenging his current placement at the
Lincoln Regional Center or whether he is challenging his
conviction in CR14-1334. If Petitioner wishes to challenge
both, then in this case (8:19CV172) he must file an amended
petition challenging his placement at the Lincoln Regional
Center and he must file a separate petition attacking his
conviction in CR14-1334. Since he has been allowed to proceed
in forma pauperis here, he will be allowed to proceed in
forma pauperis when he files a new habeas case.
filing his amended petition(s), Petitioner should be mindful
of Rule 2 of the Rules Governing Section 2254 Cases in
the United States Courts which requires that the
“petition must name as respondent the state officer who
has custody.” In habeas corpus challenges to present
physical confinement, the default rule is that the proper
respondent is the warden of the facility where the prisoner
is being held. Rumsfeld v. Padilla, 542 U.S. 426,
434 (2005). Because Petitioner is held at the Lincoln
Regional Center, the proper respondent in a challenge to his
current placement at the Lincoln Regional Center would appear
to be Ashley Sacriste, Hospital Administrator, Lincoln
has also filed a motion requesting the appointment of counsel
and that Respondents file an answer to his petition. (Filing
No. 7.) Because the petition is improper, this matter will
not proceed further until Petitioner files an amended
petition or petitions in accordance with this Memorandum and
Order. If Petitioner files an amended petition, the court
will promptly examine it and order Respondents to file an
answer unless it plainly appears from the petition . . . that
the petitioner is not entitled to relief.” See
Rule 4 of the Rules Governing Section 2254 Cases in the
United States District Courts. Petitioner's motion
asking Respondents to answer his petition is, therefore,
respect to the appointment of counsel, “there 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. Therefore, Petitioner's motion for the
appointment of counsel is denied without prejudice to
THEREFORE ORDERED that:
Petitioner shall file an amended petition in this case
attacking either his current placement at the Lincoln
Regional Center or his criminal conviction in the District
Court of Lancaster County, Nebraska. If Petitioner intends to
attack both, then he shall file an amended petition in this
case attacking only his current placement at the Lincoln
Regional Center and he shall file a new petition in a
separate federal case attacking his criminal conviction.
Petitioner is allowed to proceed in forma pauperis in both
federal cases-this one and the new case yet to be filed.
Petitioner shall have until November 25,
2019, to file the amended petition in this case and
the new petition. Failure to file an amended petition in
accordance with this Memorandum and Order will result in
dismissal of this matter without further notice.
Petitioner's motion (filing no. 7) is denied.
clerk of the court is directed to send Petitioner two copies
of the form petition for a writ of habeas corpus under 28
U.S.C. § 2254.
clerk of the court is directed to set a pro se case
management deadline in this matter with the following text: