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Zuniga v. Attorney General

United States District Court, D. Nevada

June 17, 2014

EDMUNDO A. ZUNIGA, Plaintiff,
v.
ATTORNEY GENERAL, et al., Defendants.

ORDER

JAMES C. MAHAN, District Judge.

This action is a pro se petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254, by a Nevada state prisoner. Before the court are two motions: petitioner's motion for reconsideration of the court's denial of his motion for the appointment of counsel (ECF No. 7) and respondents' motion to dismiss (ECF No. 9).

I. Procedural History

On September 1, 2006, the state charged petitioner with murder, by way of criminal information. (Exhibit 4).[1] Petitioner pled guilty to a negotiated charge of second-degree murder. (Exhibit 5, at p. 8). Petitioner was sentenced to a term of life imprisonment with the possibility of parole after 10 years, with an equal and consecutive sentence for use of a deadly weapon. (Exhibit 6). Petitioner did not file a direct appeal.

On June 3, 2009, petitioner filed a post-conviction habeas petition in state court. (Exhibit 10). Petitioner later filed a supplemental petition on December 8, 2010. (Exhibit 23). On July 29, 2011, the state district court conducted a hearing on the state habeas petition. (Exhibit 35). On August 26, 2011, the state district court dismissed the petition as untimely. (Exhibit 36).

Petitioner appealed the dismissal of his state habeas petition to the Nevada Supreme Court. (Exhibit 38). On November 15, 2012, the Nevada Supreme Court affirmed the dismissal of petitioner's post-conviction habeas petition on the ground that the petition was untimely pursuant to NRS 34.726, and because petitioner failed to show cause and prejudice or a fundamental miscarriage of justice. (Exhibit 51). Petitioner filed a motion for rehearing, but the petition was denied. (Exhibits 52 & 53). Remittitur issued on February 25, 2013. (Exhibit 55).

Petitioner dispatched his federal habeas petition to this court on June 24, 2013. (ECF No. 6). On August 28, 2013, this court denied petitioner's motion for the appointment of counsel and directed respondents to file a response to the petition. (ECF No. 5). Petitioner filed a motion for reconsideration regarding the denial of his motion for the appointment of counsel. (ECF No. 7). Respondents have filed a motion to dismiss the petition. (ECF No. 9). Petitioner filed a response. (ECF No. 14). Respondents filed a reply. (ECF No. 15).

II. Petitioner's Motion for Reconsideration

Petitioner has filed a motion for reconsideration of the court's denial of his motion seeking the appointment of counsel. (ECF No. 7). Pursuant to 18 U.S.C. § 3006(a)(2)(B), the district court has discretion to appoint counsel when it determines that the "interests of justice" require representation. There is no constitutional right to appointed counsel for a federal habeas corpus proceeding. Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); Bonin v. Vasquez, 999 F.2d 425, 428 (9th Cir. 1993). The decision to appoint counsel is generally discretionary. Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986), cert. denied, 481 U.S. 1023 (1987); Bashor v. Risley, 730 F.2d 1228, 1234 (9th Cir.), cert. denied, 469 U.S. 838 (1984). As the court stated in its order of August 28, 2013, the petition on file in this action is well-written and sufficiently clear in presenting the issues that petitioner wishes to bring. The issues in this case are not complex. Counsel is not justified in this instance. The motion for reconsideration of the court's prior denial of petitioner's motion for the appointment of counsel is denied.

III. Respondents' Motion to Dismiss

Respondents argue that the petition is untimely. The Antiterrorism and Effective Death Penalty Act (AEDPA) amended the statutes controlling federal habeas corpus practice to include a one-year statute of limitations on the filing of federal habeas corpus petitions. With respect to the statute of limitations, the habeas corpus statute provides:

(d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of-
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant ...

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