Trice v. Frakes

D. Nebraska

Trice v. Frakes

DecidedJune 5, 2020

Docket8:19-cv-00562

StatusUnknown

This text of Trice v. Frakes (Trice v. Frakes) is published on Counsel Stack Legal Research, covering District Court, D. Nebraska primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Trice v. Frakes, (D. Neb. 2020).

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

DE'ARIS R. TRICE,

Petitioner, 8:19CV562

vs. MEMORANDUM AND ORDER SCOTT FRAKES, Director of Nebraska Department of Correctional Services;

Respondent.

This matter is before the court on Petitioner’s correspondence which the court liberally construes as a motion to appoint counsel. (Filing No. 7.) “[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.

IT IS THEREFORE ORDERED that: Petitioner’s correspondence, construed as a motion to appoint counsel (filing no. 7), is denied without prejudice to reassertion. Dated this 5th day of June, 2020.

BY THECOURT: Kichard Gp. Ax Richard G. Kopf Senior United States District Judge

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

DE'ARIS R. TRICE,

Petitioner, 8:19CV562

vs. MEMORANDUM AND ORDER SCOTT FRAKES, Director of Nebraska Department of Correctional Services;

Respondent.

This matter is before the court on Petitioner’s correspondence which the court liberally construes as a motion to appoint counsel. (Filing No. 7.) “[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.

IT IS THEREFORE ORDERED that: Petitioner’s correspondence, construed as a motion to appoint counsel (filing no. 7), is denied without prejudice to reassertion. Dated this 5th day of June, 2020.

BY THECOURT: Kichard Gp. Ax Richard G. Kopf Senior United States District Judge

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