United States District Court, D. Nevada
MIRANDA M. DU UNITED STATES DISTRICT JUDGE.
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”).
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.
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.
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).
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 petition, the Court will direct a
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.
further ordered that the Clerk of Court file the petition.
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.
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.
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.
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.
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 ...