United States District Court, D. Nevada
MIRANDA M. DU, UNITED STATES DISTRICT JUDGE.
Jose Manuel Garcia-Gaona has submitted a 28 U.S.C. §
2254 petition for a writ of habeas corpus. He has now paid
the filing fee (see ECF No. 5). The court has
reviewed the 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. 1-3). 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,
Garcia-Gaona'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. The motion is denied.
Court notes that Garcia-Gaona has acknowledged that he
submitted his petition outside the one-year statute of
limitations imposed by the Antiterrorism and Effective Death
Penalty Act's (AEDPA) (see ECF No. 1-2). 28
U.S.C. § 2244(d). He asserts that his state
postconviction counsel failed to timely advise him that the
Nevada Supreme Court affirmed the denial of his state
petition and indicates that he believes he is entitled to
equitable tolling. The Court will not consider the tolling
issue at this time. However, should respondents file a motion
to dismiss, petitioner may raise and/or re-raise any
arguments regarding equitable tolling in an opposition to any
therefore ordered that the Clerk file and electronically
serve the petition (ECF No. 1-1) on the respondents.
further ordered that the Clerk shall add Adam Paul Laxalt,
Nevada Attorney General, as counsel for respondents.
further ordered that respondents 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
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 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 any, regarding each claim within the
response as to that claim.
further ordered that petitioner will 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
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
further ordered that the parties must 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 must
provide courtesy copies of any additional exhibits submitted
to the Court in this case, in the manner described above.
further ordered that the Clerk file petitioner's motion