United States District Court, D. Nevada
GLORIA M. NAVARRO, Chief District Judge.
This action is a pro se petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2241, by a former Nevada state prisoner. Before the Court are the following motions: petitioner's motion for the appointment of counsel (ECF No. 6), respondents' motion to dismiss the petition (ECF No. 11), respondents' motion to strike (ECF No. 18), and respondents' amended motion to dismiss the petition (ECF No. 20).
I. Procedural History
On October 24, 1979, following the entry of a guilty plea, for the State of Nevada sentenced petitioner to life in prison without the possibility of parole on a conviction of murder. (Exhibit 1). Petitioner was later allowed to withdraw his former plea of guilty and was resentenced to life with the possibility of parole. (Exhibit 2).
The Nevada Board of Parole Commissioners granted petitioner parole in 2001, but the parole was rescinded when Massachusetts refused to accept him. (Exhibit 39, at p. 1). Petitioner was granted parole again in 2002, but because he was unable to provide an acceptable release plan to the Nevada Division of Parole and Probation (P&P), that parole was also rescinded. ( Id., at p. 1-2).
On September 18, 2003, the state district court dismissed petitioner's original state habeas petition challenging the failure to release him on parole in 2002. (Exhibit 19). The Nevada Supreme Court affirmed the ruling. (Exhibit 38).
On February 26, 2004, the state district court dismissed a second state habeas petition challenging the parole board's 2002 decision to deny parole unless he submitted an acceptable release plan to P&P. (Exhibit 33). The Nevada Supreme Court again affirmed. (Exhibit 41).
On December 11, 2009, the parole board again granted petitioner parole. (Exhibit 49). Petitioner remained incarcerated. Petitioner filed a petition for a writ of mandamus with the Nevada Supreme Court seeking release on parole pursuant to the 2009 grant of parole. (Exhibit 45). The Nevada Supreme Court denied the petition for lack of original jurisdiction. (Exhibit 46).
On May 22, 2013, petitioner dispatched his § 2241 federal habeas petition to this Court, at which time he was incarcerated. In Grounds 1 and 2 of the petition, petitioner alleges a violation of due process, international law, and state law because he was granted mandatory parole pursuant to state law on December 9, 2009, but he had not been released. In Ground 3, petitioner alleges cruel and unusual punishment because he was exposed to violence and detainment, and was denied medical treatment.
Respondents originally moved to dismiss this action on November 6, 2013, as not properly raised in a § 2241 habeas petition, unexhausted, not cognizable, and for failure to state a claim upon which relief may be granted. (ECF No. 11). Petitioner opposed the motion. (ECF No. 15). Respondents filed a reply. (ECF No. 16). Petitioner filed a "rebuttal" to respondents' reply, which respondents seek to strike. (ECF Nos. 17 & 18). On January 9, 2014, respondents filed an amended motion to dismiss the petition as moot because petitioner was released on parole on or about January 2, 2014. (ECF No. 20). Petitioner opposed the amended motion to dismiss. (ECF No. 22). Respondents filed a reply. (ECF No. 23). The Court now addresses all pending motions in this action.
A. Petitioner's Motion for Appointment of Counsel
Petitioner has filed a motion for the appointment of counsel. (ECF No. 6). 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). The petition on file in this action is well-written and sufficiently ...