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Stott v. Wickham

United States District Court, D. Nevada

October 18, 2017

PHILIP STOTT, Petitioner,
v.
HAROLD WICKHAM, et al., Respondents.

          ORDER

          MIRANDA M. DU UNITED STATES DISTRICT JUDGE.

         This habeas matter under 28 U.S.C. § 2254 comes before the Court on petitioner's application to proceed in forma pauperis (ECF No. 1), on his motions (ECF Nos. 1-2 & 1-3) submitted with the petition, and for initial review of the petition under Rule 4 of the Rules Governing Section 2254 Cases (the “Habeas Rules”).

         On the pauper application (ECF No. 1), the Court finds that petitioner is not able to pay the filing fee within a reasonable time and therefore will grant the application.

         Petitioner's motion to file a longer than normal petition (ECF No. 1-2) will be denied as unnecessary because the petition as submitted did not violate any applicable page limitations.

         On the motion for appointment of counsel (ECF No. 1-3), 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).

         The 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.

         Following initial review of the petition, the Court will direct a response.

         It is therefore ordered that petitioner's application to proceed in forma pauperis (ECF No. 1) is granted and that petitioner will not be required to pay the filing fee.

         It is further ordered that the Clerk of Court file the petition.

         It is further ordered that the Clerk file the motions submitted with the petition, that the motion to file a longer than normal petition (ECF No. 1-2) is denied as unnecessary, that the motion for appointment of counsel (ECF No. 1-3) is denied, and that the Clerk will reflect these actions on the motions in a manner consistent with the Clerk's current practice when docketing the motions.

         It is further ordered that the Clerk informally electronically serve the Nevada Attorney General with a copy of the petition and this order, along with regenerated notices of electronic filing of the remaining filings herein.

         It is further ordered that respondents will have sixty (60) days from entry of this order within which to respond to the petition. 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 4.[1]

         It is further 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. Procedural 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.

         It is further ordered that, in any answer filed on the merits, respondents must specifically cite to and address the applicable state court written decision and state court record materials, if ...


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