United States District Court, D. Nevada
RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE.
Clifford McClain has submitted a pro se petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2254 and
has paid the filing fee (ECF Nos. 1, 3). Accordingly, his
application to proceed in forma pauperis (ECF No. 4)
shall be denied as moot. The court had directed McClain to
show cause and file proof to demonstrate that this petition
was timely filed (ECF No. 7). However, McClain has filed an
amended petition, that appears to indicate that this federal
petition is timely (ECF No. 5). Accordingly, the court's
order dated October 18, 2017 shall be vacated.
court has reviewed the amended petition pursuant to Habeas
Rule 4, and it shall be docketed and served on respondents.
petition for federal habeas corpus should include all claims
for relief of which petitioner is aware. If petitioner fails
to include such a claim in his petition, he may be forever
barred from seeking federal habeas relief upon that claim.
See 28 U.S.C. §2254(b) (successive petitions).
If petitioner is aware of any claim not included in his
petition, he should notify the court of that as soon as
possible, perhaps by means of a motion to amend his petition
to add the claim.
has also submitted a motion for appointment of counsel (ECF
No. 6). 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), cert. denied,
481 U.S. 1023 (1987); Bashor v. Risley, 730 F.2d
1228, 1234 (9th Cir.), cert. denied, 469 U.S. 838 (1984).
However, counsel must be appointed if the complexities of the
case are such that denial of counsel would amount to a denial
of due process, and where the petitioner is a person of such
limited education as to be incapable of fairly presenting his
claims. See Chaney, 801 F.2d at 1196; see also
Hawkins v. Bennett, 423 F.2d 948 (8th Cir.1970). Here,
McClain's petition appears sufficiently clear in
presenting the issues that he wishes to raise, and the legal
issues are not particularly complex. Therefore, counsel is
IS THEREFORE ORDERED that this court's
show-cause order dated October 18, 2017 (ECF No. 7) is
IS FURTHER ORDERED that the application to proceed
in forma pauperis (ECF No. 4) is
DENIED as moot.
IS FURTHER ORDERED that the Clerk shall
ELECTRONICALLY SERVE the amended petition (ECF No.
5) on the respondents.
IS FURTHER ORDERED that the Clerk shall add Adam
Paul Laxalt, Nevada Attorney General, as counsel for
IS FURTHER ORDERED that respondents shall file a
response to the amended petition, including potentially by
motion to dismiss, within ninety (90) days
of service of the petition, with any requests for relief by
petitioner by motion otherwise being subject to the normal
briefing schedule under the local rules. Any response filed
shall comply with the remaining provisions below, which are
entered pursuant to Habeas Rule 5.
IS FURTHER ORDERED that any procedural defenses
raised by respondents in this case shall 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 shall 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 and 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.
IS FURTHER ORDERED that, in any answer filed on the
merits, respondents shall 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.
IS FURTHER ORDERED that petitioner shall have
forty-five (45) days from service of the
answer, motion to dismiss, or other response to file a reply
or opposition, with any other requests for relief by
respondents by motion otherwise being subject to the normal
briefing schedule under the local rules.
IS FURTHER ORDERED that any additional state court
record exhibits filed herein by either petitioner or
respondents shall be filed with a separate index of exhibits
identifying the exhibits by number. The CM/ECF attachments
that are filed ...