United States District Court, D. Nevada
C. MAHAN UNITED STATES DISTRICT JUDGE.
Marvin Mosby, through the Federal Public Defender (FPD) has
filed a petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254. His application to proceed in forma
pauperis shall be granted (ECF No. 6).
has moved to be appointed as counsel in this case (ECF No.
8). 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).
FPD explains in the motion for appointment of counsel, this
petition is the third that Mosby has pending before this
court (ECF No. 8). He challenges three separate habitual
offender convictions that were entered within several months
of each other. This court has already appointed the FPD in
the first and second of the three cases on the bases that
Mosby is serving a life term without the possibility of
parole, he suffers from health issues, and his access to
legal materials may be restricted. Good cause appearing, the
motion to appoint the FPD as counsel in this case is granted.
court has reviewed the petition pursuant to Habeas Rule 4,
and it shall be served on respondents.
IS THEREFORE ORDERED that petitioner's
application to proceed in forma pauperis (ECF No. 6)
IS FURTHER ORDERED that the Clerk shall
ELECTRONICALLY SERVE the petition (ECF No. 1) on the
IS FURTHER ORDERED that the Clerk shall add Adam
Paul Laxalt, Nevada Attorney General, as counsel for
IS FURTHER ORDERED that the motion to appoint the
FPD as counsel for petitioner (ECF No. 8) is GRANTED.
IS FURTHER ORDERED that respondents shall file a
response to the petition, including potentially by motion to
dismiss, within ninety (90) days of service
of the petition, with any requests for relief by petitioner
by motion otherwise being subject to the normal briefing
schedule under the local rules. Any response filed shall
comply with the remaining provisions below, which are entered
pursuant to Habeas Rule 5.
IS FURTHER ORDERED that any procedural defenses
raised by respondents in this case shall be raised together
in a single consolidated motion to dismiss. In other words,
the court does not wish to address any procedural defenses
raised herein either in seriatum fashion in multiple
successive motions to dismiss or embedded in the answer.
Procedural defenses omitted from such motion to dismiss will
be subject to potential waiver. Respondents shall not file a
response in this case that consolidates their procedural
defenses, if any, with their response on the merits, except
pursuant to 28 U.S.C. § 2254(b)(2) as to any unexhausted
claims clearly lacking merit. If respondents do seek
dismissal of unexhausted claims under § 2254(b)(2): (a)
they shall do so within the single motion to dismiss not in
the answer; and (b) they shall specifically direct their
argument to the standard for dismissal under §
2254(b)(2) set forth in Cassett v. Stewart, 406 F.3d
614, 623-24 (9th Cir. 2005). In short, no procedural
defenses, including exhaustion, shall be included with the
merits in an answer. All procedural defenses, including
exhaustion, instead must be raised by motion to dismiss.
IS FURTHER ORDERED that, in any answer filed on the
merits, respondents shall specifically cite to and address
the applicable state court written decision and state court
record materials, if any, regarding each claim within the
response as to that claim.
IS FURTHER ORDERED that petitioner shall have
forty-five (45) days from service of the
answer, motion to dismiss, or other response to file a reply
or opposition, with any other requests for relief by
respondents by motion otherwise being subject to the normal
briefing schedule under the local rules.
IS FURTHER ORDERED that any additional state court
record exhibits filed herein by either petitioner or
respondents shall be filed with a separate index of exhibits
identifying the exhibits by number. The CM/ECF attachments
that are filed further shall be identified by the number of
the exhibit in the attachment. Any further exhibits