United States District Court, D. Nevada
CHARLES D. VIOX, Petitioner,
ISIDRO BACA, et. al, Respondents.
MIRANDA M. DU UNITED STATES DISTRICT JUDGE
action is a petition for a writ of habeas corpus, pursuant to
28 U.S.C. § 2254, by Charles D. Viox, a Nevada prisoner.
Viox initiated this action on October 11, 2017, by filing an
application to proceed in forma pauperis along with
his habeas corpus petition, a motion for appointment of
counsel, and a motion to extend prison copywork. (ECF No. 1.)
financial information provided with Viox's application to
proceed in forma pauperis indicates that he is
unable to pay the filing fee for this action. Therefore, the
in forma pauperis application will be granted, and
he will not be required to pay the filing fee.
Court has reviewed Viox's petition pursuant to Rule 4 of
the Rules Governing Habeas Corpus Cases Under Section 2254
and concludes that it fails to state cognizable claim for
federal habeas relief. A petition for writ of habeas corpus
under 28 U.S.C. § 2254 cannot rely upon mere
“notice” pleading, as may be found in other civil
cases in the United States District Courts. Blackledge v.
Allison, 431 U.S. 63, 75 n. 7 (1977) (citing Advisory
Committee Note to Rule 4, Rules Foll. Cases under 28 U.S.C.
§ 2254). The petition must instead contain
particularized facts “that point to ‘a real
possibility of constitutional error.'”
O'Bremski v. Maass, 915 F.2d 418, 420
(9th Cir. 1990) (sources omitted). The facts
alleged in the petition must be sufficient in detail to allow
the court to determine whether the petition should be
summarily dismissed, or should be given further review.
Adams v. Armontrout, 897 F.2d 332, 334
(8th Cir. 1990) (factual details sufficient to
support claims must be present on the face of the petition).
Court were called upon to rule on Viox's petition in its
current form, it would be dismissed. The petition contains
three “grounds” for relief, each of which Viox
has identified as a claim arising under the Due Process
Clause of the Fourteenth Amendment. Each of the grounds is
drafted in a rambling, nearly-incomprehensible manner, such
that the Court is unable to discern a coherent set of
operative facts that would potentially support a
so, it appears that, but for poor drafting and lack of
organization, Viox may have tenable claims for relief. Thus,
the petition will be dismissed, but petitioner will have an
opportunity to file an amended petition that meets habeas
pleading standards. See Jarvis v. Nelson, 440 F.2d
13, 14 (9th Cir. 1971) (“[A] petition for
habeas corpus should not be dismissed without leave to amend
unless it appears that no tenable claim for relief can be
pleaded were such leave granted.”).
is advised to closely follow the instructions provided with
the Court's form petition for writ of habeas corpus, as
well as the instructions on the form itself. In particular,
petitioner should note that every claim in which he contends
there was a violation of his constitutional rights is a
separate ground for relief and must be pleaded under a
separately-numbered ground in the form petition. In other
words, each contention petitioner believes to be sufficient
for the Court to grant relief is a claim and must be
separately presented, not mixed into the discussion of
another claim. In addition, each ground must include all the
relevant facts that support it.
petitioner should not only correct the noted deficiencies but
also include all claims for relief of which he is aware. That
is, the petition should contain all exhausted claims and all
unexhausted claims which petitioner believes might be a basis
for granting relief from the criminal conviction or sentence.
An exhausted claim is one that has been fairly presented to
the Nevada Supreme Court. An unexhausted claim, on the other
hand, is one that has not been presented to the Nevada
Supreme Court and, indeed, may not have been presented to any
court. If petitioner is aware of any claim and fails to
inform this Court as provided below, the abuse of the writ
rules may bar petitioner from ever raising this claim in a
Court will also deny petitioner's motion for appointment
of counsel. Pursuant to 18 U.S.C. §3006A(a)(2)(B), the
district court has discretion to appoint counsel when it
determines that the “interests of justice”
require representation. 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); Bashor v. Risley, 730 F.2d 1228,
1234 (9th Cir. 1984). Based on the information
currently before the Court, appointment of counsel is not
respect to petitioner's motion to extend prison copywork,
an inmate plaintiff does not have a right to free
photocopying. Johnson v. Moore, 948 F.2d 517, 521
(9th Cir. 1991); Sands v. Lewis, 886 F.2d
1166, 1169 (9th Cir. 1989) (“numerous courts
have rejected any constitutional right to free and unlimited
photocopying”). Nevada Department of Corrections (NDOC)
Administrative Regulation (AR) 722 governs copying of legal
documents by inmates, and provides, “[c]opies of legal
documents requested by inmates may be made for a nominal
fee.” AR 722.01(9), available at
http://www.doc.nv.gov/?q=node/68. “Inmates can
only accrue a maximum of $100 debt for copy work expenses for
all cases, not per case.” Id. A court may
order a prison to provide additional photocopying when the
prisoner demonstrates that an increase is necessary for an
inmate to provide copies to the court and other parties.
See, e.g., Allen v. Clark County Detention Center,
2011 WL 886343, at * 2 (D. Nev. March 11, 2011).
assist petitioner in litigating this case, the Court will
extend his copywork to allow him to extend his debt by $50.
In this regard, petitioner is advised that, under the local
rules for this Court, he is not required to serve copies of
filed documents on the respondents. See LSR 3-5,
Local Rules of Practice.
therefore ordered that petitioner's application to
proceed in forma pauperis (ECF No. 1) is granted.
The Clerk will file the petition for writ of habeas corpus
and accompanying motions. The Clerk will refrain from serving
the respondents at this time, pending the amendment of the
further ordered that petitioner will have thirty days (30)
days from the date of the entry of this order on the record
within which to file with the Court an amended petition which
corrects the deficiencies identified in this order. In
addition to correcting the problems which the Court has
identified, petitioner must include in that amended petition
any and all additional claims for habeas corpus relief of
which petitioner is aware.
further ordered that if petitioner fails to respond to this
order in the time and manner provided above, the Court will
conclude that petitioner does not desire to pursue this
matter, and ...