Swanson v. Jeffreys

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ROGER R. SWANSON SR.,
Petitioner,
vs.
ROB JEFFREYS,
Respondent.
8:24CV396
MEMORANDUM AND ORDER
This matter is before the Court on Petitioner’s Motion for Clarification,
Filing No. 22, and a motion for counsel, Filing No. 23. In his Motion for
Clarification, it appears Petitioner seeks an explanation of the meaning of this
Court’s use of the term “Filing No.” in its orders including the Memorandum
and Order dated September 17, 2025, and instruction on how to proceed. See
Filing No. 22.
The Court shall grant the Motion for Clarification, Filing No. 22, and the
Motion to Appoint Counsel, Filing No. 23, shall be denied without prejudice.
I. MOTION FOR CLARIFICATION
In his Motion for Clarification, Petitioner seeks clarification regarding
the meaning of this Court’s prior orders, indicating that he is unclear how to
proceed with his case because he does not understand what documents the
Court is referencing when the Court refers to various filing numbers. See Filing
No. 22 at 1. The Court shall now provide an explanation of the terms used by
the Court to assist Petitioner in understanding this Court’s prior orders so he
may proceed with his case.
For example, the Court refers to the Memorandum and Order dated
September 17, 2025, as “Filing No. 21.” When the Clerk’s Office sends copies
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of orders or documents filed in a case, a header appears at the very top of each
page. The header for the first page of the September 17, 2025, Memorandum
and Order appears as follows:
8:24-cv-00396-JMG-PRSE Doc # 21 Filed: 09/17/25 Page 1 of 2 - Page ID # 1626.
‘“8:24-cv-00396” references the case number. “JMG” references the initials of
the judge assigned to the case. “PRSE” references the assignment of the case
to the pro se docket based on Petitioner’s pro se status at the time his petition
was filed. “Doc # 21” references the numerical assignment of the particular
document in the Court’s docket1 for the case. Of note here, the “Doc #”
references the same document as the “Filing No.” used by this Court in its
orders. “Filed: 09/17/25” references the date the document was filed with the
Court (as opposed to the date it was sent or signed). “Page 1 of 2” references
the exact page number of the document filed. Finally, “Page ID # 1626” is the
exact page number of the document when considering all of the documents filed
in the Court’s docket in the case. For example, the first page of the first
document filed into the docket in Petitioner’s case is listed as “Page ID # 1.”
See Filing No. 1 at 1.2
With these explanations in mind, the Court shall now address
Petitioner’s request for an explanation of what the September 17, 2025,
Memorandum and Order at Filing No. 21 (and referenced in the header as
1 The docket tracks all of the documents filed into Petitioner’s case in chronological order beginning
with Petitioner’s Petition filed on October 3, 2024, which is referenced by this Court as Filing No. 1,
and is shown in the header of the Petition as “Doc. # 1”. A copy of the current docket sheet in
Petitioner’s case shall be included with this Memorandum and Order for Petitioner’s reference.
2 When the Court refers to a filing number and then lists “at” followed by numbers, those numbers
reference the page numbers of the document. In this instance, the Court is referring to the first page
of Filing No. 1.
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“Doc. # 21”) instructed him to do. In that Memorandum and Order, the Court
addressed Petitioner’s correspondence with the Court dated August 30, 2025,
(which was referenced as Filing No. 18, and corresponded with the “Doc. #18”
header placed on the top of that document when filed with the Court), which
the Court construed as a motion for status. See Filing No. 21 at 1. In his
correspondence, Petitioner stated he was checking on the status of his case,
explaining that he “received a letter on Aug. 12, 2025[,] from Jordan Osborne,
that meant nothing to [him],” and asking the Court if the Court could “explain
to [him] in layman terms what they are saying.” Filing No. 18. The Court
responded that it was unable to give legal advice to Petitioner, but that
Petitioner could reach out to counsel for Respondent for clarification. See Filing
No. 21 at 1–2. The Court further explained that the next step in Petitioner’s
case was for Petitioner to file a response to the Answer filed by Respondent
addressing the claims raised in Petitioner’s Petition and that Petitioner had
through and until October 6, 2025, to do so. Filing No. 21 at 1.
To clarify, at this stage in the case Petitioner must file a response
addressing Respondent’s arguments regarding Petitioner’s Second Amended
Petition (which is located in the docket at Filing No. 11), set forth in
Respondent’s Answer (located in the docket at Filing No. 19), and his brief in
support of his Answer (located at Filing No. 20 in the docket). While the
deadline for Petitioner to file his response to Respondent’s arguments was
October 6, 2025, which has passed, this Court shall sua sponte extend the
deadline for Petitioner to file his response to November 24, 2025.
II. MOTION FOR COUNSEL
In his Motion for Counsel, Petitioner states that he is unclear on how to
proceed and requires legal assistance in doing so. See Filing No. 23. However,
“there is neither a constitutional nor statutory right to counsel in habeas
proceedings; instead, [appointment] is committed to the discretion of the trial
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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 denies the Motion for Counsel because Petitioner has not
articulated any reason aside from a general lack of understanding regarding
how to proceed which could potentially provide a basis for such appointment.
As Petitioner has also requested clarification regarding how to proceed which
this Court has provided, the Motion for Counsel, Filing No. 23, shall be denied
without prejudice. The Court will, however, “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).
For these reasons, it is THEREFORE ORDERED:
1. The Motion for Clarification, Filing No. 22, is granted.
2. The Motion to Appoint Counsel, Filing No. 23, is denied without
prejudice to reassertion.
3. The Court sua sponte grants Petitioner through and until
November 24, 2025, to file a response to Respondent’s arguments as set forth
in Respondent’s Answer and brief in support (located at Filing Nos. 19 & 20).
4. If Petitioner needs additional time to file his response to
Respondent’s Answer, he must file a written motion with this Court seeking
an extension prior to the November 24, 2025, deadline.
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5. The Clerk’s Office is instructed to send Petitioner a copy of the
docket sheet following the entry of this Memorandum and Order into the
docket.
6. The Clerk of the Court is directed to set a pro se case management
deadline in this matter with the following text: November 24, 2025: Check
for Petitioner’s Response to Answer.
Dated this 23rd day of October, 2025.
BY THE COURT:
John M. Gerrard
Senior United States District Judge
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