United States District Court, D. Nevada
ROBERT C. JONES, District Judge.
This habeas matter comes before the Court: (a) for initial review of the petition under Rule 4 of the Rules Governing Section 2254 Cases; (b) on a motion for appointment of counsel and motion to file extra pages submitted with the petition; and (c) on a motion (#6) for a status check. The filing fee has been paid.
On petitioner's motion for appointment of counsel, the Sixth Amendment right to counsel does not apply in habeas corpus actions. See Knaubert v. Goldsmith, 791 F.2d 722, 728 (9th Cir. 1986). However, 18 U.S.C. § 3006A(a)(2)(B) authorizes a district court to appoint counsel to represent a financially eligible petitioner whenever "the court determines that the interests of justice so require." The decision to appoint counsel lies within the discretion of the court; and, absent an order for an evidentiary hearing, appointment is mandatory only when the circumstances of a particular case indicate that appointed counsel is necessary to prevent a due process violation. See, e.g., Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir.1986); Eskridge v. Rhay, 345 F.2d 778, 782 (9th Cir.1965).
The Court does not find that the interests of justice require that counsel be appointed in this case. While petitioner presents a number of claims, he has demonstrated an adequate ability in his pleadings to articulate his claims pro se with the resources available to him. From a preliminary review, it does not appear at this juncture that an evidentiary hearing necessarily will be required as to either the merits or a procedural defense. Nor does petitioner's sentence structure otherwise weigh heavily in favor of appointing counsel either in isolation or in conjunction with the remaining factors. While almost any lay litigant perhaps would be better served by the appointment of counsel, that is not the standard for appointment. The form motion filed does not lead to a contrary finding by the Court. The motion therefore will be denied.
The motion to file extra pages will be granted. The petition in places borders on being overly detailed. However, on balance, the overall disposition of the action would not be furthered by requiring the filing of a shorter petition; and petitioner in all events presents a large number of claims.
The motion for a status check will be denied as moot.
Following initial review of the petition, a response will be directed.
IT THEREFORE IS ORDERED that the Clerk of Court shall file the petition and shall informally electronically serve the Nevada Attorney General with a copy of the petition and this order, along with regenerated notices of electronic filing of the remaining filings herein.
IT FURTHER IS ORDERED that the Clerk shall file the motion for appointment of counsel accompanying the petition, that the motion is DENIED, and that the Clerk shall reflect the denial of the motion by this order.
IT FURTHER IS ORDERED that the Clerk shall file the motion to file extra pages accompanying the petition, that the motion is GRANTED to the extent consistent with the provisions herein, and that the Clerk shall reflect the grant of the motion by this order.
IT FURTHER IS ORDERED that petitioner's motion (#6) for a status check is DENIED as moot.
IT FURTHER IS ORDERED that, taking into account the large number of claims, respondents shall have ninety (90) days from entry of this order within which to respond to the petition. Any response filed shall comply with the remaining provisions below, which are tailored to this particular case based upon the Court's screening of the matter and which are entered pursuant to Habeas Rule 4.
IT FURTHER IS ORDERED that any procedural defenses raised by respondents in this case shall be raised together in a single consolidated motion to dismiss. In other words, the Court does not wish to address any procedural defenses raised herein either in seriatum fashion in multiple successive motions to dismiss or embedded in the answer. Procedural defenses omitted from such motion to dismiss will be subject to potential waiver. Respondents shall not file a response in this case that consolidates their procedural defenses, if any, with their response on the merits, except pursuant to 28 U.S.C. § 2254(b)(2) as to any unexhausted claims clearly lacking merit. If respondents do seek dismissal of unexhausted claims under § 2254(b)(2): (a) they shall do so within the single motion to dismiss not in the answer; and (b) they shall specifically direct their argument to the standard for dismissal under § 2254(b)(2) set forth in Cassett v. Stewart, 406 F.3d 614, 623-24 (9th Cir. 2005). In short, no procedural defenses, including exhaustion, shall be included with the merits in an answer. All procedural defenses, including exhaustion, instead must be raised by motion to dismiss.
IT IS FURTHER ORDERED that, in any answer filed on the merits, respondents shall specifically cite to and address the applicable state court written decision and state court record materials, if any, ...