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Duke v. Neven

United States District Court, D. Nevada

June 30, 2014

DAVID VAN DUKE, Petitioner,
v.
DWIGHT NEVEN, et al., Respondents.

ORDER

ANDREW P. GORDON, 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. In this order, the Court addresses several pending motions, including respondents' motion to dismiss (Dkt. #8), petitioner's motion for the appointment of counsel (Dkt. #15), petitioner's motions to amend (Dkt. #16 & #19), and petitioner's motion for a stay (Dkt. #18).

I. Procedural History

Petitioner was charged with failure to stop on signal of a police officer, trafficking in a controlled substance (cocaine), and transport of a controlled substance. (Exhibit 12).[1] The matter proceeded to a jury trial and the jury returned a guilty verdict on all three counts. (Exhibit 15). The judgment of conviction was entered on February 26, 2008. (Exhibit 26). Petitioner was sentenced to a 13-60 month term of imprisonment on the failure to stop count, a consecutive term of 10-25 years for trafficking a controlled substance, and a concurrent term of 13-60 months for transport of a controlled substance. (Exhibit 26). Petitioner appealed his conviction. (Exhibit 18). The Nevada Supreme Court affirmed the conviction on direct appeal. (Exhibit 37).

Petitioner, acting in pro se filed a post-conviction habeas petition on January 27, 2010, and an amended petition on April 15, 2010. (Exhibits 46 & 49). With the assistance of counsel, petitioner filed a supplemental post-conviction habeas petition on January 5, 2011. (Exhibit 53). After an evidentiary hearing, the state district court denied the post-conviction habeas petition by order filed April 4, 2012. (Exhibits 63, 65, 72). Petitioner appealed. (Exhibit 75). The Nevada Supreme Court affirmed the denial of the post-conviction state habeas petition. (Exhibit 97).

Petitioner dispatched his federal petition to this Court on April 18, 2013. (Dkt. #6, at p. 1). Respondents have filed a motion to dismiss the petition. (Dkt. #8). Petitioner has filed a motion for the appointment of counsel. (Dkt. #15). Petitioner has filed two motions to amend the petition. (Dkt. #16 & #19). Petitioner has also filed a motion seeking a stay. (Dkt. #18). Oppositions and replies to the motions have been filed, and the Court now considers all pending motions.

II. Petitioner's Motion for the Appointment of Counsel

Petitioner has filed a motion for the appointment of counsel. (Dkt. #15). 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 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 the appointment of counsel is denied.

III. Petitioner's Motions to Amend

Petitioner has filed two motions to amend his petition. (Dkt. #16 & #19). The Federal Rules of Civil Procedure apply in federal habeas corpus actions to the extent that it is not inconsistent with statutory provisions or the habeas corpus rules. Rule 12, Rules Governing Section 2254 Cases in the United States District Courts. Rule 15(a) of the Federal Rules of Civil Procedure provides as follows:

(1) A party may amend his pleading once as a matter of course within:
(A) 21 days after serving it, or
(B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.
(2) In all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely given leave when justice so requires.

Fed. R. Civ. P. 15(a)(1)(2). Although leave to amend is to be freely granted when justice so requires, leave to amend may be denied for various reasons, including the failure to abide by local rules on amending pleadings and where a proposed amendment is futile. Gardner v. Martino, 563 F.3d 981, 991 (9th Cir. 2009) (finding that district court did not abuse its discretion when party seeking leave did not attach a proposed amended petition as required by local rule); Caswell v. Calderon, 363 F.3d 832, 837-40 (9th Cir. 2004) (addressing the standard for leave to amend). The court may consider "bad faith, undue delay, prejudice to the opposing party, futility of the amendment, and whether the party has previously amended his pleadings" though each factor is not necessarily given equal weight. Bonin v. Calderon, 59 F.3d 815, 844-45 (9th Cir. 1995). A district court may deny a motion to amend where the movant presents no new facts, only new theories, with no satisfactory explanation for the failure to fully develop the contentions in the first place. Id. at 844-45. Leave to amend may be denied if the proposed amendment is futile or would be subject to dismissal. See Saul v. United States, 928 F.2d 829, 843 (9th Cir. 1991).

In this instant case, petitioner's motions to amend were filed more than 21 days after service of respondents' motion to dismiss. Respondents have opposed both motions to amend. (Dkt. #17 & #22). Therefore, petitioner may amend only by leave of court. Fed.R.Civ.P. 15(a).

In both of petitioner's motions for leave to amend, he has failed to comply with Local Rule 15-1(a), which requires a party seeking leave to amend to "attach the proposed amended pleading to any motion to amend, so that it will be complete in itself without reference to the superseding pleading." Petitioner failed to provide a complete proposed amended petition, as required by Local Rule 15-1(a). Additionally, petitioner's amendments are futile.

In his first motion to amend, petitioner seeks to amend his petition to add a claim of ineffective assistance by his attorney during post-conviction proceedings. (Dkt. #16, at p. 2-8). Although petitioner references Martinez v. Ryan, 132 S.Ct. 1309 (2012), this Court notes that there is no freestanding claim under that decision. Martinez held only that the absence or ineffective assistance of counsel in "initial-review state collateral proceedings" can, in certain circumstances, constitute cause for procedural default of a claim of ineffective assistance of trial counsel. 132 S.Ct. at 1320. There is no freestanding constitutional claim based on Martinez, because the United States Supreme Court expressly refused to hold that a freestanding right to counsel exists in state post-conviction proceedings. Martinez, 132 S.Ct. at 1319. Additionally, 28 U.S.C. 2254(i) provides that "[t]he ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings shall not be a ground for relief in a proceeding arising under section 2254." Finally, any claim based on ineffective assistance of petitioner's counsel during post-conviction proceedings is unexhausted, as petitioner never presented such a claim to the Nevada Supreme Court. See Exhibits 32, 88; 28 U.S.C. § ...


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