8:19-cr-00402
D. Neb.Sep 12, 2025Background
- Defendant Jesse L. Cody filed a pro se 28 U.S.C. § 2255 motion alleging ineffective assistance of counsel and prosecutorial misconduct; the government concedes timeliness but opposes relief on the merits.
- The government relied on sworn declarations from Cody’s trial and appellate counsel (Matthew J. Knipe and Julie A. Frank); Cody disputes those declarations and raises credibility challenges.
- Cody also filed several ancillary pro se motions seeking counsel, an evidentiary hearing, counsel’s case file, Jencks Act material, discovery, and to assert an "actual innocence" gateway claim.
- The Court determined the existing record did not conclusively refute Cody’s claims and that credibility disputes over counsel’s affidavits require an evidentiary hearing.
- The Court appointed the Federal Public Defender to represent Cody at a November 25, 2025 evidentiary hearing, ordered counsel and the former attorneys to appear in person (with Cody able to attend by phone), and denied Cody’s pro se discovery-type motions without prejudice to counsel pursuing appropriate avenues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 2255 motion requires an evidentiary hearing | Government: affidavits from counsel defeat claims; no hearing necessary | Cody: affidavits contested; credibility disputes require hearing | Hearing required due to unresolved credibility issues |
| Appointment of counsel for § 2255 proceedings | Government did not seek appointment | Cody: requests appointment for hearing and investigation | Federal Public Defender appointed for hearing |
| Entitlement to discovery / counsel file / Jencks material on § 2255 | Govt: standard limits discovery; relied on counsel declarations | Cody: seeks broad production and discovery to support claims | Denied pro se discovery motions; discovery requires good cause and counsel can pursue |
| Raising "actual innocence" as gateway | Govt: did not concede gateway applicability | Cody: seeks to assert actual innocence to overcome procedural bars | Court expressed no opinion on scope/timing; left to appointed counsel to evaluate |
Key Cases Cited
- Hoggard v. Purkett, 29 F.3d 469 (8th Cir. 1994) (interest of justice requires appointment of counsel when evidentiary hearing is held)
- Mayfield v. United States, 955 F.3d 707 (8th Cir. 2020) (remand for hearing where record did not conclusively refute ineffective-assistance claim)
- Franco v. United States, 762 F.3d 761 (8th Cir. 2014) (evidentiary hearing required to resolve credibility conflicts in affidavits)
- Bracy v. Gramley, 520 U.S. 899 (1997) (habeas petitioners are not entitled to discovery as a matter of ordinary course)
- Calderon v. United States Dist. Court for the N. Dist. of Cal., 98 F.3d 1102 (9th Cir. 1996) (courts should not allow prisoners to use federal discovery for fishing expeditions)
- Wadlington v. United States, 428 F.3d 779 (8th Cir. 2005) (actual innocence is a gateway to consider otherwise barred constitutional claims)
- Schlup v. Delo, 513 U.S. 298 (1995) (standard for actual-innocence gateway)
- McQuiggin v. Perkins, 569 U.S. 383 (2013) (actual innocence, if proved, can excuse procedural bars such as statute of limitations)