United States District Court, D. Nevada
MIRANDA M. DU, UNITED STATES DISTRICT JUDGE
previous order (ECF No. 3), petitioner was directed to pay
the filing fee in order to proceed with his federal habeas
petition. The Court has been informed that petitioner has now
paid the full filing fee. Thus, the petition and accompanying
documents will be filed.
Court has reviewed the petition pursuant to Rule 4 of the
Rules Governing Section 2254 Cases and finds that one of the
claims in the petition is subject to dismissal. In Ground
One, petitioner alleges that he was deprived of effective
assistance of counsel due to his counsel's failure to
investigate the charges against him. Petitioner does not,
however, specify what an adequate investigation would have
disclosed or how it may have led to a more favorable outcome
of his case. Petitioner also contends that his counsel
“failed to act as a zealot advocate” on his
behalf, but provides no factual allegations to support this
petition for writ of habeas corpus under 28 U.S.C. §
2254 cannot rely upon mere “notice” pleading, as
may be found in other civil cases in the United States
District Courts. Blackledge v. Allison, 431 U.S. 63,
75 n. 7 (1977) (citing Advisory Committee Note to Rule 4,
Rules Foll. Cases under 28 U.S.C. § 2254).
“Conclusory allegations which are not supported by a
statement of specific facts do not warrant habeas
relief.” James v. Borg, 24 F.3d 20, 29
(9th Cir. 1994); see also Allard v.
Nelson, 423 F.2d 1216, 1217 (9thCir.1970)
(holding that conclusory allegations in a habeas petition
fail to state a claim and do not suffice to shift the burden
to the state to answer an order to show cause). Ground One,
as drafted, must be dismissed. Nevertheless, a tenable claim
for relief could be presented if petitioner amended his
petition to include additional facts in support of his claim.
Thus, petitioner will be granted the opportunity to amend his
petition for that purpose.
addition, petitioner should not only attempt to correct the
foregoing deficiency but also include all claims for relief
of which he is aware. That is, the petition should contain
all exhausted claims and all unexhausted claims which
petitioner believes might be a basis for granting relief from
the criminal conviction or sentence. An exhausted claim is
one that has been fairly presented to the Nevada Supreme
Court. An unexhausted claim, on the other hand, is one that
has not been presented to the Nevada Supreme Court and,
indeed, may not have been presented to any court. If
petitioner is aware of any claim and fails to inform this
Court as provided below, the abuse of the writ rules may bar
petitioner from ever raising this claim in a federal court.
Court, therefore, instructs petitioner to consider the matter
carefully and to determine all possible claims for habeas
corpus relief. If petitioner knows or learns of any exhausted
or unexhausted claims which are not included in the present
petition, petitioner should include such claims in his
amended petition. Petitioner's failure to do so may
prevent petitioner from ever raising these claims at a later
has also submitted a motion for appointment of counsel.
Pursuant to 18 U.S.C. §3006A(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); Bashor v. Risley, 730 F.2d 1228,
1234 (9th Cir. 1984). However, counsel must be
appointed if the complexities of the case are such that
denial of counsel would amount to a denial of due process,
and where the petitioner is a person of such limited
education as to be incapable of fairly presenting his claims.
See Chaney, 801 F.2d at1196; see also Hawkins v.
Bennett, 423 F.2d 948 (8th Cir. 1970). At this point,
the issues in this case are not particularly complex. It does
not appear that appointment of counsel is warranted in this
instance. Petitioner's motion for the appointment of
counsel is denied.
therefore ordered that the Clerk file the petition for writ
of habeas corpus and the motion for appointment of counsel,
the latter of which is denied. The Clerk will refrain from
serving the respondents at this time, pending the amendment
of the petition.
further ordered that petitioner will have thirty (30) days
from the date of the entry of this order on the record within
which to file with the Court an amended petition which
corrects the deficiency identified in this order. In
addition, petitioner must include in that amended petition
any and all additional claims for habeas corpus relief of
which petitioner is aware.
further ordered that if petitioner fails to respond to this
order in the time and manner provided above, the Court will
conclude that petitioner wishes to proceed based on his
initial petition with Ground One dismissed.
further ordered that the Clerk send petitioner a noncapital
Section 2254 habeas petition form, one copy of the
instructions for the form, and a copy of his initial habeas
This order does not explicitly or
implicitly hold that the petition otherwise is free of