United States District Court, D. Nevada
RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE.
Ossiris Dizon Lynch has submitted a pro se petition
for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
He has now paid the filing fee (see ECF No. 5), and
therefore, his application to proceed in forma
pauperis (ECF No. 1) shall be denied as moot. The court
has reviewed the petition pursuant to Habeas Rule 4, and it
shall be docketed and served on respondents.
court notes that Lynch submitted what he titled a petition as
well as an amended petition (ECF Nos. 1-1, 1-2). However, he
clearly states in the amended petition that he seeks to add
those claims to the original petition. Accordingly, in the
interests of judicial efficiency, the court shall construe
the two filings together as the petition.
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. 4). 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, Lynch's
petition is clear in presenting the issues that he wishes to
raise, and the legal issues are not particularly complex.
Therefore, counsel is not justified at this time. Lynch's
motion is denied.
IS THEREFORE ORDERED that petitioner's
application to proceed in forma pauperis (ECF No. 1)
is DENIED as moot.
IS FURTHER ORDERED that the Clerk shall
file ECF Nos. 1-1 and 1-2 together as the petition.
The Clerk shall ELECTRONICALLY SERVE the
petition 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 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 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 further shall be identified by the number of
the exhibit in the attachment.
IS FURTHER ORDERED that the parties SHALL SEND
courtesy copies of all exhibits in this case to the Clerk of
Court, 400 S. Virginia St., Reno, NV, 89501, directed to the
attention of “Staff Attorney” on the outside of
the mailing address label. Additionally, in the future, all
parties shall provide courtesy copies of ...