IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEBRASKA

MATEO DEMATEOJUAN,

Petitioner, 

vs. 

STATE OF NEBRASKA,

Respondent.

8:23CV184

MEMORANDUM AND ORDER

This matter is before the Court on preliminary review of Petitioner Mateo 

Demateojuan’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 are: 

Claim One: Petitioner’s sentence is excessive in violation of the 

Constitution.

Claim Two: Petitioner’s counsel was ineffective in failing to prosecute 

Petitioner’s direct appeal.

The 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 his claims or any defenses to 

them or whether there are procedural bars that will prevent Petitioner from obtaining the 

relief sought. 

Lastly, Petitioner included a request for the appointment of counsel in his petition

as he does not speak English and needs an “appointed lawyer that can assist [him] in 

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[his] appeals and this post-conviction.” Filing No. 1 at 13. “[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). 

Petitioner’s state-court records, available to this Court online, show that 

Petitioner was sentenced to 44 to 46 years’ imprisonment on September 1, 2022, 

pursuant to a no-contest plea to an amended charge of attempted sexual assault on a 

child in the first degree, a Class II felony.1 See Filing No. 1 at 1. A direct appeal was 

filed, and the Nebraska Court of Appeals summarily affirmed Petitioner’s conviction on 

January 11, 2023. While Petitioner indicates he does not speak English, he prepared 

his petition in English and has responded appropriately to the Court’s previous orders 

requiring him to sign his petition and pay the filing fee. See Filing No. 3; Filing No. 4; 

Filing No. 1-1. Upon careful review of the record, the Court finds there is no need for 

the appointment of counsel at this time.

1 The Court takes judicial notice of the state court records. See Stutzka v. McCarville, 420 F.3d 757, 760 

n.2 (8th Cir. 2005) (court may take judicial notice of judicial opinions and public records). Nebraska's 

judicial records may be retrieved on-line through the JUSTICE site, 

https://www.nebraska.gov/justice/case.cgi.

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IT IS THEREFORE ORDERED that:

1. Upon 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. 

2. By May 23, 2024, 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: May 23, 2024: 

deadline for Respondent to file state court records in support of answer or motion for 

summary judgment. 

3. 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 

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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, he should inform the Court by filing a 

notice stating that he 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.

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4. If Respondent elects to file an answer, the following procedures must be 

followed by Respondent and Petitioner:

A. By May 23, 2024, 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 

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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, he should inform the Court by filing a 

notice stating that he 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: June 24, 2024: check 

for Respondent’s answer and separate brief. 

5. 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.

6. Petitioner’s request for the appointment of counsel is denied without 

prejudice to reassertion.

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Dated this 8th day of April, 2024.

BY THE COURT:

Joseph F. Bataillon

Senior United States District Judge

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