The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
DAVID B. BROWN,
Petitioner, 4:24CV3153
vs.
MEMORANDUM AND ORDER
BARBARA LEWIEN,
Respondent.
This matter is before the Court on preliminary review of Petitioner David B.
Brown’s Petition for Writ of Habeas Corpus, Filing No. 1, brought pursuant to 28 U.S.C.
§ 2254 and filed on August 28, 2024. In his petition, Petitioner states he was convicted
after a jury trial of two counts of first degree sexual assault and was sentenced on May
9, 2018, to concurrent terms of 30 to 35 years’ imprisonment. Filing No. 1 at 1–2. The
Nebraska Court of Appeals affirmed Petitioner’s convictions and sentences on March
25, 2019. State v. Brown, No. A-18-599, 2019 WL 1492689 (Neb. Ct. App. Mar. 25,
2019). Petitioner did not seek further review in the Nebraska Supreme Court, and the
mandate issued on May 1, 2019. Filing No. 1 at 2.
Petitioner filed a motion for postconviction relief on April 22, 2020, which the state
district court denied without an evidentiary hearing on September 17, 2020. Id. at 3–4.
Petitioner did not file an appeal within 30 days of that decision, but on January 19, 2021,
Petitioner filed a motion for reconsideration and to vacate and reinstate the order
denying his motion for postconviction relief. Id. at 4. The state district court dismissed
Petitioner’s motion for reconsideration as untimely and Petitioner appealed. Id. at 4, 6.
The Nebraska Court of Appeals reversed and remanded for the district court to consider
Petitioner’s motion for reconsideration on the merits. State v. Brown, 970 N.W.2d 809
(Neb. Ct. App. 2022); see also Filing No. 1 at 6. The Nebraska Supreme Court granted
the State’s petition for further review and reversed the judgment of the Court of Appeals
in an opinion dated October 21, 2022, concluding that the state district court did not err
in denying Petitioner’s motion to reconsider as the court did not have the power to
vacate the denial of postconviction relief to extend the time for appeal. State v. Brown,
980 N.W.2d 834 (Neb. 2022).
It appears from the face of the petition that Petitioner’s claims may be barred by
the statute of limitations because the petition was filed more than one year after
Petitioner’s judgment became final. See 28 U.S.C. § 2244(d)(1). However, in order to
ensure a just and fair resolution of this matter, the Court will enter an order progressing
this case to final resolution. Respondent should be mindful of and, if necessary,
respond to Petitioner’s assertions of “actual innocence” to the extent Petitioner
relies on such allegations to excuse any procedural bar.
Petitioner has also filed a motion for appointment of counsel due to, inter alia, the
complexity of the case, the existence of conflicting testimony, his inability to investigate
the facts and present his case, and lack of legal training. Filing No. 4. “[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., Wiseman
v. Wachendorf, 984 F.3d 649, 655 (8th Cir. 2021); 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).
After careful review of the record, the Court finds there is no need for the
appointment of counsel at this early stage in the proceedings as the only issue presently
under consideration is the timeliness of Petitioner’s habeas petition and Petitioner has
demonstrated his ability to present his claims and requests for relief in appropriate,
clearly written pleadings. The Court is, however, aware that this situation may change
as litigation progresses. As the Eighth Circuit Court of Appeals instructs, the Court will
“continue to be alert to the possibility that, because of procedural complexities or other
reasons, later developments in the case may show either that counsel should be
appointed, or that strict procedural requirements should, in fairness, be relaxed to some
degree.” Williams v. Carter, 10 F.3d 563, 567 (8th Cir. 1993).
IT IS THEREFORE ORDERED that:
1. By January 13, 2025, 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:
January 13, 2025: deadline for Respondent to file state court records in support of
answer or motion for summary judgment.
2. If Respondent elects to file a motion for summary judgment, the following
procedures must be followed by Respondent and Petitioner:
A. The motion for summary judgment must be accompanied by a
separate brief, submitted at the time the motion is filed.
B. The motion for summary judgment must be supported by any state
court records that are necessary to support the motion. Those
records must be contained in a separate filing entitled: “Designation
of State Court Records in Support of Motion for Summary
Judgment.”
C. Copies of the motion for summary judgment, the designation,
including state court records, and Respondent’s brief must be
served on Petitioner except that Respondent is only required to
provide Petitioner with a copy of the specific pages of the record
that are cited in Respondent’s motion and brief. In the event that
the designation of state court records is deemed insufficient by
Petitioner or Petitioner needs additional records from the
designation, Petitioner may file a motion with the Court requesting
additional documents. Such motion must set forth the documents
requested and the reasons the documents are relevant to the
cognizable claims.
D. No later than 30 days following the filing of the motion for summary
judgment, Petitioner must file and serve a brief in opposition to the
motion for summary judgment. Petitioner may not submit other
documents unless directed to do so by the Court.
E. No later than 30 days after Petitioner’s brief is filed, Respondent
must file and serve a reply brief. In the event that Respondent
elects not to file a reply brief, she should inform the Court by filing a
notice stating that she will not file a reply brief and that the motion is
therefore fully submitted for decision.
F. If the motion for summary judgment is denied, Respondent must file
an answer, a designation and a brief that complies with terms of
this order. (See the following paragraph.) The documents must be
filed no later than 30 days after the denial of the motion for
summary judgment. Respondent is warned that failure to file an
answer, a designation and a brief in a timely fashion may
result in the imposition of sanctions, including Petitioner’s
release.
3. If Respondent elects to file an answer, the following procedures must be
followed by Respondent and Petitioner:
A. By January 13, 2025, Respondent must file all state court records
that are relevant to the cognizable claims. See, e.g., Rule 5(c)-(d)
of the Rules Governing Section 2254 Cases in the United States
District Courts. Those records must be contained in a separate
filing entitled: “Designation of State Court Records in Support of
Answer.”
B. No later than 30 days after the relevant state court records are filed,
Respondent must file an answer. The answer must be
accompanied by a separate brief, submitted at the time the answer
is filed. Both the answer and the brief must address all matters
germane to the case including, but not limited to, the merits of
Petitioner’s allegations that have survived initial review, and
whether any claim is barred by a failure to exhaust state remedies,
a procedural bar, non-retroactivity, a statute of limitations, or
because the petition is an unauthorized second or successive
petition. See, e.g., Rules 5(b) and 9 of the Rules Governing
Section 2254 Cases in the United States District Courts.
C. Copies of the answer, the designation, and Respondent’s brief must
be served on Petitioner at the time they are filed with the Court
except that Respondent is only required to provide Petitioner with a
copy of the specific pages of the designated record that are cited in
Respondent’s answer and brief. In the event that the designation of
state court records is deemed insufficient by Petitioner or Petitioner
needs additional records from the designation, Petitioner may file a
motion with the Court requesting additional documents. Such
motion must set forth the documents requested and the reasons
the documents are relevant to the cognizable claims.
D. No later than 30 days after Respondent’s brief is filed, Petitioner
must file and serve a brief in response. Petitioner must not submit
any other documents unless directed to do so by the Court.
E. No later than 30 days after Petitioner’s brief is filed, Respondent
must file and serve a reply brief. In the event that Respondent
elects not to file a reply brief, she should inform the Court by filing a
notice stating that she will not file a reply brief and that the merits of
the petition are therefore fully submitted for decision.
F. The Clerk of the Court is directed to set a pro se case management
deadline in this case using the following text: February 12, 2025:
check for Respondent's answer and separate brief.
4. No discovery shall be undertaken without leave of the Court. See Rule 6
of the Rules Governing Section 2254 Cases in the United States District Courts.
5. Petitioner's motion for appointment of counsel, Filing No. 4, is denied
without prejudice to reassertion.
Dated this 27th day of November, 2024.
BY THE COURT:
Joseph F. Bataillon
Senior United States District Judge