United States District Court, D. Nevada
MIRANDA M. DU UNITED STATES DISTRICT JUDGE.
represented habeas matter under 28 U.S.C. § 2254 comes
before the Court for initial review of the amended petition
(ECF No. 6) under Rule 4 of the Rules Governing Section 2254
Cases (the “Habeas Rules”) and on
petitioner’s motion for appointment of counsel (ECF No.
motion for appointment of counsel, the Sixth Amendment right
to counsel does not apply in habeas corpus actions. See
Knaubert v. Goldsmith, 791 F.2d 722, 728 (9th Cir.
1986). However, 18 U.S.C. § 3006A(a)(2)(B) authorizes a
district court to appoint counsel to represent a financially
eligible petitioner whenever "the court determines that
the interests of justice so require." The decision to
appoint counsel lies within the discretion of the court; and,
absent an order for an evidentiary hearing, appointment is
mandatory only when the circumstances of a particular case
indicate that appointed counsel is necessary to prevent a due
process violation. See, e.g., Chaney v. Lewis, 801
F.2d 1191, 1196 (9th Cir.1986); Eskridge v. Rhay,
345 F.2d 778, 782 (9th Cir.1965).
Court does not find that the interests of justice require
that counsel be appointed in this case. The issues do not
appear to be unduly complex; petitioner had the assistance of
counsel on both direct appeal and in the state
post-conviction proceedings to develop his claims; and
petitioner has demonstrated an adequate ability to articulate
the claims pro se in federal court with the
resources available to him. From a preliminary review, it
does not appear at this juncture that an evidentiary hearing
necessarily will be required as to either the merits or a
procedural defense. While almost any lay litigant perhaps
would be better served by the appointment of counsel, that is
not the standard for appointment. The motion presented does
not lead to a contrary finding by the Court. The motion
therefore will be denied.
initial review of the amended petition, the Court will direct
therefore ordered that petitioner’s motion for
appointment of counsel (ECF No. 7) is denied.
further is ordered that the Clerk of Court informally
electronically serve the Nevada Attorney General with a copy
of the amended petition and this order, along with
regenerated notices of electronic filing of the remaining
further is ordered that respondents will have sixty (60) days
from entry of this order within which to respond to the
petition, as amended. Any response filed must comply with the
remaining provisions below, which are tailored to this
particular case based upon the Court's screening of the
matter and which are entered pursuant to Habeas Rule
further is ordered that any procedural defenses raised by
respondents in this case must 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.
defenses omitted from such motion to dismiss will be subject
to potential waiver. Respondents must 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 will 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.
further ordered that respondents must file a set of state
court record exhibits relevant to the response filed to the
petition, in chronological order and indexed as discussed,
further ordered that all state court record exhibits filed
herein must be filed with a separate index of exhibits
identifying the exhibits by number. The CM/ECF attachments
that are filed further must be identified by the number or
numbers of the exhibits in the attachment, in the same manner
as in No. 3:06-cv-00087-ECR-VPC, ## 25-71. The purpose of
this provision is so that the Court and any reviewing court
thereafter will be able to quickly determine from the face of
the electronic docket sheet which numbered exhibits are filed
in which attachments.
further ordered that counsel additionally must send a hard
copy of all exhibits filed, for this case, ...