United States District Court, D. Nevada
MIRANDA M. DU UNITED STATES DISTRICT JUDGE
a pro se petition for a writ of habeas corpus filed
pursuant to 28 U.S.C. § 2254, by a Nevada state
prisoner. Before the Court are petitioner's motion for a
stay (ECF No. 42), motion for the appointment of counsel (ECF
No. 45), and motion for reconsideration (ECF No. 48).
February 17, 2015, this Court entered an order granting
respondents' motion to dismiss and finding several
grounds of the petition unexhausted. (ECF No. 29). The Court
gave petitioner the option of abandoning his unexhausted
claims and proceeding on his exhausted claims, or in the
alternative, to seek a stay under Rhines v. Weber,
544 U.S. 269 (2005). Petitioner was directed to inform the
Court of his choice among the options given within thirty
days. (ECF No. 29, at 8-10).
petitioner's motion for a stay, in limited circumstances,
the Court can order a stay and abeyance of a mixed petition
to allow petitioner's return to state court to exhaust
his claims. Rhines v. Weber, 544 U.S. 269, 277
(2005). A stay is appropriate if petitioner shows (1) good
cause for his failure to exhaust claims in state court, (2)
the unexhausted claims are meritorious, and (3) the
petitioner has not engaged in intentionally dilatory
litigation tactics. Id. at 277-78. Petitioner has
not shown good cause for his failure to exhaust his claims.
Petitioner's motion for a stay is denied.
Petitioner's unexhausted claims will be dismissed.
has filed a fourth motion for the appointment of counsel.
(ECF No. 45). Petitioner has previously filed motions for the
appointment of counsel (ECF Nos. 5, 8, 38). The Court has
denied petitioner's prior motions for the appointment of
counsel. (ECF No. 29, at 3; ECF No. 41, at 3). Petitioner has
no constitutional right to appointed counsel in 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
within the Court's discretion. 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 Court previously ruled that the petition in this
action is sufficiently clear in presenting the issues that
petitioner wishes to bring and that the issues in this case
are not complex. Nothing in petitioner's current motion
causes this Court to deviate from its prior ruling.
Petitioner's fourth motion seeking the appointment of
counsel is denied.
has filed a motion for reconsideration of the Court's
order of February 17, 2015. (ECF No. 48). In challenging an
interlocutory order, a district court may rescind,
reconsider, or amend a previous order pursuant to its
inherent power to modify interlocutory orders before the
entry of final judgment. City of Los Angeles, Harbor Div.
v. Santa Monica Baykeeper, 254 F.3d 882, 886-87
(9th Cir. 1987). Petitioner argues that he
presented all claims to the state district court in his
post-conviction petition. Petitioner asserts that he did not
need to raise those issues to the Nevada Supreme Court on
appeal because the record on appeal contained those claims.
In order to be “fairly presented, ” claims must
be presented to the court in a procedurally proper manner.
See Castille v. Peoples, 489 U.S. 346, 351 (1989)
(holding that exhaustion cannot be achieved by procedurally
deficient or improper means). “Fair presentation”
of an appellant's claims must be accomplished within the
four corners of the appellant's opening brief, and
appellate courts are not obligated to sift through the
lower-court record to find potential claims. See Baldwin
v. Reese, 541 U.S. 27 (2004); see also Castillo v.
McFadden, 399 F.3d 993, 1000 (9th Cir. 2005).
In his motion, petitioner acknowledges that his claims were
not presented to the Nevada Supreme Court in a procedurally
proper manner. (ECF No. 48, at p. 4). Petitioner has not
demonstrated any valid basis to alter this Court's order
of February 17, 2015, thus his motion for the same is denied.
therefore ordered that petitioner's motion for a stay and
abeyance (ECF No. 42) is denied.
further ordered that petitioner's fourth motion for the
appointment of counsel (ECF No. 45) is denied.
further ordered that motion for reconsideration (ECF No. 48)
of the Court's order of February 17, 2015, is denied.
further ordered that the unexhausted grounds specified in the
Court's order of February 17, 2015, at page 9, are
dismissed without prejudice.
further ordered that respondents must file and serve an
answer to the remaining grounds of the petition within thirty
(30) days from the entry of this order. The answer must
include substantive arguments on the merits as to each
remaining ground of the petition.
further ordered that petitioner must file and serve a reply
to the answer, within thirty (30) days ...