United States District Court, D. Nevada
RICKIE L. HILL, Petitioner,
RENEE BAKER, et al., Respondents.
C. JONES UNITED STATES DISTRICT JUDGE.
action is a petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254.
February 11, 2015, this court granted a stay and
administratively closed petitioner Rickie L. Hill's
federal habeas corpus action while he litigated his state
petition (ECF No. 4).
further state-court proceedings have concluded, and he has
now returned to this court seeking to reopen this case (ECF
No. 7). Good cause appearing, this action is reopened. The
petition shall be served on respondents.
petition for federal habeas corpus should include all claims
for relief of which petitioner is aware. If petitioner fails
to include such a claim in his petition, he may be forever
barred from seeking federal habeas relief upon that claim.
See 28 U.S.C. §2254(b) (successive petitions).
If petitioner is aware of any claim not included in his
petition, he should notify the court of that as soon as
possible, perhaps by means of a motion to amend his petition
to add the claim.
has also filed a motion for appointment of counsel and a
supplement to the motion (ECF Nos. 8 and 9). 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). Here, the court
notes that Hill is serving four consecutive terms of ten
years to life. However, his petition is clear in presenting
the issues that he wishes to raise, and the legal issues are
not particularly complex. Therefore, counsel is not justified
at this time. Hill's motion is denied.
THEREFORE ORDERED that petitioner's motion to reopen this
action (ECF No. 7) is GRANTED.
FURTHER ORDERED that, as the stay is lifted by this order,
the Clerk shall REOPEN THE FILE in this action.
FURTHER ORDERED that the Clerk shall file and ELECTRONICALLY
SERVE the petition (ECF No. 5) on the respondents.
FURTHER ORDERED that the Clerk shall add Adam Paul Laxalt,
Nevada Attorney General, as counsel for respondents.
FURTHER ORDERED that petitioner's motion for appointment
of counsel and supplemental motion for appointment of counsel
(ECF Nos. 8 and 9) are both DENIED.
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
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.
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 ...