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Tiffany v. Legrand

United States District Court, D. Nevada

February 17, 2015

DAVID TIFFANY, Petitioner,
v.
ROBERT LeGRAND, et al., Respondents.

ORDER

MIRANDA M. DU, District Judge.

This is a pro se petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254, by a Nevada state prisoner. This matter comes before the Court on petitioner's motions for the appointment of counsel (dkt. nos. 5 & 8) and respondents' motion to dismiss (dkt. no. 12).

I. PROCEDURAL HISTORY

Petitioner was convicted, pursuant to a jury trial, of two counts of lewdness with a child under the age of 14, eight counts of sexual assault with a minor under the age of 14, three counts of solicitation of a minor, and five counts of child abuse and neglect. (Exh. 92.[1]) Petitioner was sentenced to ten (10) life sentences with the possibility of parole after twenty (20) years, and eight (8) definite terms, all running concurrently. Id. Petitioner appealed his conviction. (Exh. 100.) Through appellate counsel, petitioner filed his opening brief on June 26, 2008. (Exh. 130.) The Nevada Supreme Court rejected petitioner's claims and affirmed petitioner's convictions in an order filed April 13, 2010. (Exh. 145.) Petitioner filed a motion for rehearing, which was denied by order filed June 23, 2010. (Exh. 148.) Remittitur issued October 18, 2010. (Exh. 154.)

While his direct appeal was pending, petitioner filed a federal habeas petition in this Court under Case No. 3:08-cv-00539-LRH-RAM. The action was dismissed without prejudice because petitioner had not exhausted his claims in state court. (Dkt. no. 15 in Case No. 3:08-cv-00539-LRH-RAM.)

Petitioner filed a pro per post-conviction habeas petition in the state district court on November 12, 2010. (Exh. 158.) The petition was 320 pages in length. ( Id. ) By order filed February 16, 2011, the state district court dismissed the petition without prejudice on the basis that the petition was too lengthy. (Exh. 176.) Petitioner appealed. (Exh. 177.) On April 11, 2011, the Nevada Supreme Court reversed and remanded the state district court's denial of the petition based on its length. (Exh. 201.) The Nevada Supreme Court remanded the case to the state district court for consideration of the claims raised in the post-conviction habeas petition. ( Id. )

On remand, the state district court appointed counsel to represent petitioner in his post-conviction proceedings. (Exh. 213.) On November 22, 2011, petitioner's counsel filed a supplemental memorandum in support of the post-conviction habeas petition. (Exh. 216.) Following an evidentiary hearing, by order filed July 12, 2012, the state district court denied the post-conviction habeas petition. (Exh. 233.) Petitioner appealed from the denial of his post-conviction petition. (Exh. 237.) Petitioner's opening brief on appeal was filed on January 28, 2013. (Exh. 245.) On September 18, 2013, the Nevada Supreme Court affirmed the denial of the post-conviction habeas petition. (Exh. 267.) Remittitur issued on December 5, 2013. (Exh. 270.)

Approximately two years before his state habeas proceedings concluded, petitioner filed another federal habeas petition in this Court, under Case No. 3:11-cv-00806-LRH-WGC. The federal petition was dismissed without prejudice for failure to exhaust his state court remedies. (Dkt. no. 5, in Case No. 3:11-cv-00806-LRH-WGC.)

On February 22, 2013, acting in pro per, petitioner filed a second state postconviction habeas petition raising a single claim that trial counsel was ineffective for failing to negotiate a plea bargain. (Exh. 247.) By order filed May 31, 2013, the state district court denied petitioner's second post-conviction habeas petition. (Exh. 257.) Petitioner appealed. (Exh. 259.) On September 18, 2013, the Nevada Supreme Court affirmed the dismissal of the petition, finding the petition procedurally defaulted. (Exh. 265.) Remittitur issued on October 15, 2013. (Exh. 268.)

Petitioner dispatched his third federal habeas petition on November 25, 2013, which was filed in the instant case. (Dkt. no. 2, at page 1, item 5.) The petition contains 28 grounds for relief. (Dkt. nos. 2 & 2-1.) Respondents have filed a motion to dismiss the petition because it contains unexhausted claims. (Dkt. no. 12.) Petitioner filed an opposition to the motion to dismiss. (Dkt. no. 27.) Respondents have filed a reply to the opposition. (Dkt. no. 28.) Additionally, petitioner has filed two motions for the appointment of counsel. (Dkt. nos. 5 & 8.) The Court now addresses all pending motions in this case.

II. DISCUSSION

A. Petitioner's Motions for Appointment of Counsel

Petitioner has filed two motions seeking the appointment of counsel. (Dkt. nos. 5 & 8.) 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 ...


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