United States District Court, D. Nevada
December 20, 2016, this court denied petitioner's motion
to proceed in forma pauperis and directed him to pay
the filing fee in order to proceed with his petition for writ
of habeas corpus pursuant to 28 U.S.C. § 2254. ECF No.
4. He has complied with that order and paid the required fee.
ECF No. 5. The court has reviewed the petition pursuant to
Habeas Rule 4, and the petition shall be served upon the
petition, petitioner contends that, due to confusion arising
from his two criminal cases being consolidated in state
court, some of his claims for habeas relief have not been
addressed by the state court. He further contends that, due
to clerical errors, he is in jeopardy of failing to comply
with the statute of limitations applicable to federal habeas
petitions (28 U.S.C. § 2244(d)). Accordingly, he asks
this court to stay this federal habeas proceeding pending the
state court exhaustion of his habeas claims.
federal court may stay a petition containing both exhausted
and unexhausted claims if: (1) the habeas petitioner has good
cause; (2) the unexhausted claims are potentially
meritorious; and (3) petitioner has not engaged in dilatory
litigation tactics. Rhines v. Weber, 544 U.S. 269,
277 (2005); see also Wooten v. Kirkland, 540 F.3d
1019, 1023-24 (9th Cir. 2008). The United States
Supreme Court has held that a "petitioner's
reasonable confusion about whether a state filing would be
timely will ordinarily constitute good cause for him to file
in federal court." Pace v. DiGuglielmo, 544
U.S. 408, 416 (2005), The Court indicated that a petitioner
facing the "predicament" that could occur if he is
waiting for a final decision from the state courts as to
whether his petition was "properly filed" should
file a "protective" federal petition and ask the
federal court for a stay and abeyance. Id.
petitioner's federal petition is appropriately filed as a
protective petition, a stay and abeyance of this federal
habeas corpus proceeding is warranted. Thus, the court shall
stay these proceedings pending petitioner's exhaustion of
state court remedies.
has also filed a motion for appointment of counsel. ECF No.
6. 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). 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 at 1196; see also Hawkins v.
Bennett, 423 F.2d 948 (8th Cir. 1970).
the court finds that the motion for appointment of counsel is
premature. Petitioner will need to file a motion to re-open
the case after his state post-conviction proceedings have
concluded. Further, petitioner shall file a motion to file an
amended petition and attach a proposed amended petition. Such
amended petition shall clearly and concisely set forth the
factual basis for his claims, as well as demonstrate that the
petition is timely and that his claims are exhausted. At that
time, petitioner may renew his motion for appointment of
counsel if he is able to demonstrate that the complexities of
his case are such that a denial of counsel would amount to a
denial of due process. Accordingly, the motion for
appointment of counsel is denied without prejudice.
THEREFORE ORDERED that the Clerk shall file the petition and
electronically serve it on the respondents. Respondents shall
not be required to respond to the petition until so directed
by the court.
FURTHER ORDERED that the Clerk shall add Adam Paul Laxalt,
Nevada Attorney General, as counsel for respondents.
FURTHER ORDERED that this action is STAYED pending final
resolution of petitioner's state post-conviction
FURTHER ORDERED that the grant of a stay is conditioned upon
petitioner returning to federal court with a motion to reopen
the case within thirty (30) days of the issuance of the
remittitur by the Supreme Court of Nevada, at the conclusion
of the state court proceedings.
FURTHER ORDERED that the Clerk SHALL ADMINISTRATIVELY CLOSE
this action, until such time as the court grants a motion to
reopen the matter.
FURTHER ORDERED that petitioner's motion for appointment
of counsel (ECF ...