United States District Court, D. Nevada
MIRANDA M. DU, 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 is respondents' motion to dismiss the amended petition (dkt. no. 48) and petitioner's renewed motion for the appointment of counsel (dkt. no. 52).
I. PROCEDURAL HISTORY
On February 11, 2004, the State of Nevada filed an indictment in the Second Judicial District Court for the State of the Nevada charging petitioner with two counts of burglary, one count of possession of burglary tools, one count of first-degree arson, one count of conspiracy to commit first-degree arson, and three counts of possession of stolen property. (Exh. 7.) The State subsequently filed notice of its intent to have petitioner adjudicated a habitual criminal on May 19, 2004. (Exh. 19.)
Pursuant to a plea agreement, petitioner pled guilty to two counts of burglary, one count of first-degree arson, and three counts of possession of stolen property (Exh. 32.) In exchange for petitioner's plea, the State agreed to dismiss the charges of conspiracy to commit first-degree arson, possession of burglary tools. ( Id. ) Additionally, the State agreed not to seek petitioner's adjudication as a habitual criminal. ( Id. ) On November 5, 2004, the state district court sentenced petitioner to two consecutive prison terms of 48 to 120 months for the two burglary charges, a consecutive term of 72 to 180 months for the arson charge, and consecutive terms of 24 to 60 months for the three possession of stolen property charges. (Exh. 33, at 15-16.) The judgment of conviction was filed on November 5, 2004. (Exh. 34.)
Petitioner appealed his conviction to the Nevada Supreme Court. (Exh. 37.) On August 18, 2005, the Nevada Supreme Court affirmed petitioner's conviction. (Exh. 52.) Remittitur issued on September 13, 2005. (Exh. 53.)
On October 12, 2005, petitioner filed a pro se post-conviction habeas petition in the state district court. (Exh. 54.) On December 26, 2006, petitioner filed a supplement to the petition. (Exh. 60.) On January 9, 2008, the state district court appointed counsel to assist petitioner. (Exh. 62.) Petitioner's counsel filed a second supplemental habeas petition on April 30, 2007. (Exh. 65.) After holding an evidentiary hearing, the state district court denied the petition by order filed October 8, 2008. (Exh. 87.) Petitioner appealed the denial to the Nevada Supreme Court. (Exh. 89.) On February 3, 2010, the Nevada Supreme Court affirmed the state district court's denial of the post-conviction habeas petition. (Exh. 107.) Remittitur issued on March 2, 2010. (Exh. 108.)
Petitioner dispatched his federal petition for writ of habeas corpus to this Court on February 18, 2010. (Dkt. no. 9, at p. 1, item 5.) Respondents moved to dismiss the petition. (Dkt. no. 15.) By order filed September 12, 2011, this Court granted respondents' motion in part, dismissing the Fourth and Eighth Amendment claims in Grounds 2, 4, 5, 8, 9, 10, 11, 12 and 13. (Dkt. no. 31.) The Court also ruled that Grounds 1, 3, 6, 7, 8, 9, 10, 11 and 13 of the petition were unexhausted; petitioner was given options for dealing with his unexhausted grounds. ( Id. ). Petitioner moved to stay this action so that he could return to state court to exhaust his grounds for relief. (Dkt. no. 32.) On December 27, 2011, this Court granted petitioner's motion for a stay and abeyance pursuant to Rhines v. Weber, 544 U.S. 269 (2005). (Dkt. no. 35.)
Petitioner returned to state court and filed a second post-conviction habeas petition on February 3, 2012. (Exh. 116.) The state district court dismissed the petition on March 28, 2012. (Exh. 118.) Petitioner appealed the dismissal of his second state habeas petition to the Nevada Supreme Court. (Exh. 120.) On November 14, 2012, the Nevada Supreme Court issued an order affirming the state district court's dismissal of the second state habeas petition. (Exh. 131.) Remittitur issued on December 10, 2012. (Exh. 133.)
On December 13, 2012, petitioner filed a motion to lift the stay in this proceeding. (Dkt. no. 36.) Petitioner also filed a motion for the appointment of counsel, which this Court denied. (Dkt. nos. 37 & 38.) This Court granted petitioner's motion to reopen the case, and directed petitioner to file an amended petition within thirty days. (Dkt. no. 38.) Petitioner failed to file an amended petition within the allotted time period, and respondents filed a motion for an order requiring petitioner to show cause why the instant case should not be dismissed for failure to comply with the Court's order. (Dkt. no. 41.) Petitioner filed an amended petition on March 12, 2014, which raises eleven grounds for relief. (Dkt. no. 47.) Petitioner filed a motion for reconsideration of the Court's denial of his motion for the appointment of counsel, which the Court denied by order filed September 10, 2014. (Dkt. nos. 39 & 54.) Respondents have filed the instant motion to dismiss the amended petition. (Dkt. no. 48.) Petitioner filed a response to the motion to dismiss and a renewed motion for the appointment of counsel. (Dkt. nos. 51 & 52.)
II. PETITIONER'S RENEWED MOTION FOR COUNSEL
By order filed September 10, 2014, this Court denied petitioner's motion for reconsideration of the Court's denial of his motion for the appointment of counsel and denied his second motion for the appointment of counsel. (Dkt. no. 54.) Petitioner has filed his third motion for the appointment of counsel. (Dkt. no. 52.) 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). This Court denied petitioner's prior motions for the appointment of counsel. (Dkt. nos. 8, 38, 54.) Petitioner has presented nothing in the present motion that would persuade this Court to alter its prior decision denying the appointment of counsel. Petitioner's most recent motion for the appointment of counsel is denied.
III. RESPONDENTS' MOTION ...