IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEBRASKA

LEANDRE R. JENNINGS,

Petitioner, 

vs. 

CRAIG GAMBLE, TSCI Warden; and ROB 

JEFFERIES, Director;

Respondents.

8:23CV181

MEMORANDUM AND ORDER

This matter is before the Court on Petitioner Leandre R. Jennings’ Petition for Writ 

of Habeas Corpus, Filing No. 1, brought pursuant to 28 U.S.C. § 2254 and Petitioner’s 

Motion for Leave to File Amendment to Petition (“Motion to Amend”), Filing No. 9. In his 

Motion to Amend, Petitioner seeks to amend “Ground Four (c)” of the original Petition, 

and Petitioner attached a complete, signed copy of his proposed amended petition to the 

Motion to Amend. Filing No. 9. Upon consideration, Petitioner’s Motion to Amend is 

granted, and the Court will treat the amended petition attached to the Motion to Amend 

as the operative petition (hereinafter “Amended Petition”). 

The Court now conducts a preliminary review of the Amended Petition 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: The trial court erred when it denied Petitioner’s motion to 

suppress and admitted cell phone records and cell site 

location information into evidence obtained pursuant to an 

invalid court order.

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Claim Two: The trial court erred in overruling Petitioner’s motion to 

suppress and admitting into evidence the items seized or 

photographed during the search of Petitioner’s residence 

because the search warrant lacked particularity, was 

unsupported by sufficient evidence to establish probable 

cause, and was based on information obtained from a 

previous unlawful search.

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Claim Three: Petitioner received ineffective assistance of trial and appellate 

counsel in violation of the Sixth Amendment because counsel 

failed to (1) object to the intentional destruction of biological 

material DNA evidence; (2) object to false information within 

the affidavit and application in support of a search warrant for 

Petitioner’s cell phone records; (3) interview or call witnesses 

in Petitioner’s favor; (4) object to jury instruction No. 4; (5) 

retest all biological material evidence which resulted in a 

mixed DNA sample; (6) obtain impeaching evidence, 

including audio and visual recordings, of Petitioner’s interview 

in police headquarters interview room; and (7) object to the 

false statements of Det. Larry Cahill during his testimony. 

Claim Four: The trial court denied Petitioner’s postconviction motion 

without giving him an opportunity to respond to the State’s 

reply brief in violation of due process.

1 Claim Two combines the claims contained in Grounds Two and Three of the Amended Petition. Filing 

No. 9 at 20–22.

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With the exception of Claim Four, 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 these

claims or any defenses to them or whether there are procedural bars that will prevent 

Petitioner from obtaining the relief sought. Claim Four is not cognizable in a federal 

habeas action as it is based on errors in the state postconviction proceedings. Errors 

during state postconviction review are not cognizable in a federal habeas corpus action. 

See Bell-Bey v. Roper, 499 F.3d 752, 756 (8th Cir. 2007) (“Because the Constitution does 

not guarantee the existence of state post-conviction proceedings, an infirmity in a state 

post-conviction proceeding does not raise a constitutional issue cognizable in a federal 

habeas application.” (cleaned up)); Jenkins v. Houston, 4:05CV3099, 2006 WL 126632 

(D. Neb. 2006) (collecting cases). Claim Four is dismissed.

Lastly, Petitioner requests the appointment of counsel. 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). Here, Petitioner was convicted of, inter alia, first degree murder and 

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sentenced to life in prison. Petitioner states that the transcripts from his trial consist of 

several thousand pages and appointed counsel is needed to address DNA evidence and 

phone records. Filing No. 4. Upon careful consideration, the Court will grant Petitioner’s 

motion and will appoint counsel for Petitioner.

IT IS THEREFORE ORDERED that:

1. Petitioner’s Motion to Amend, Filing No. 9, is granted. The Amended 

Petition attached to the Motion to Amend is the operative petition. The Clerk of the Court 

is directed to update the docket text to identify Filing No. 9 as Petitioner’s Amended 

Petition for Writ of Habeas Corpus.

2. Upon initial review of the Amended Petition, Filing No. 9, the Court 

preliminarily determines that Petitioner’s Claims One, Two, and Three, as they are set 

forth in this Memorandum and Order, are potentially cognizable in federal court. Claim 

Four is dismissed.

3. Petitioner’s Motion for Appointment of Counsel, Filing No. 4, is granted.

4. Nicole Cavanaugh is appointed to represent Petitioner pursuant to 18 

U.S.C. § 3006A(a)(2)(B).

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5. Nicole Cavanaugh is directed to promptly enter her appearance on 

Petitioner’s behalf.

6. No later than December 8, 2023, counsel for Respondents and Nicole 

Cavanaugh shall confer and file a joint motion suggesting a suitable progression of this 

2 Section 3006A(a)(2)(B) provides: “Whenever . . . the court determines that the interests of justice so 

require, representation may be provided for any financially eligible person who— . . . is seeking relief under 

section 2241, 2254, or 2255 of title 28.”

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case. The Court will enter an order progressing this case to disposition following the filing 

of the joint motion.

7. The Federal Public Defender is directed to provide Nicole Cavanaugh with 

a CJA voucher in his capacity as administrator of the Criminal Justice Act panel.

8. The Clerk of the Court is directed to send a copy of this Memorandum and 

Order to the Federal Public Defender, Nicole Cavanaugh, and all other parties who 

receive notice of filings in this case.

9. The Clerk of the Court is directed to set a pro se case management deadline 

in this case using the following text: December 8, 2023: check for joint progression 

motion.

Dated this 8th day of November, 2023.

BY THE COURT:

Joseph F. Bataillon

Senior United States District Judge

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