United States District Court, D. Nevada
MIRANDA M. DU UNITED STATES DISTRICT JUDGE.
pro se petition for a writ of habeas corpus comes
before the Court on the petitioner's motion to reopen
(ECF No. 94), as well as various assorted motions.
Respondents have opposed the motion to reopen (ECF No. 97),
and petitioner has replied (ECF No. 99).
initiated this habeas action - which challenged his
conviction for battery with use of a deadly weapon resulting
in substantial bodily harm in state court No. C248756 - on
April 14, 2012. (See ECF No. 1 & Exh.
On August 9, 2012, the Court appointed Todd Leventhal to
represent petitioner, and on September 27, 2013, Leventhal
filed an amended petition (ECF No. 50). On February 3, 2015,
the Court granted the respondents' motion to dismiss the
amended petition after concluding that all grounds in the
petition were unexhausted. (ECF No. 68.)
February 20, 2015, petitioner moved to withdraw Leventhal as
counsel (ECF No. 70), and on March 12, 2015, petitioner moved
for reconsideration of the Court's dismissal order (ECF
No. 72). In the motion to reconsider, petitioner asked the
Court - among other things - to stay this action while he
exhausted his state court remedies. On April 8, 2015,
Leventhal also moved to withdraw as counsel. (ECF No. 78.)
September 15, 2015, the Court granted Leventhal's motion
to withdraw and denied petitioner's motion for
reconsideration. (ECF No. 79). The Court noted in its order
that it could not stay and abey a wholly unexhausted
petitioner pursued both his direct appellate remedies in this
case and a state post-conviction habeas petition, which he
filed on November 3, 2015, in No. C248756. (See ECF
Nos. 82 & 85; Exh. DD.) Petitioner moved to reopen the
instant case on August 18, 2016, after the Nevada Court of
Appeals affirmed the denial of his 2015 petition but while
his direct appeal was still pending. (ECF No. 86.) On October
3, 2016, the United States Supreme Court denied
petitioner's petition for writ of certiorari.
(See ECF No. 90.) On March 24, 2017, the Court
denied petitioner's motion to reopen on the grounds that
it would not reopen this action while petitioner was
exhausting his appeal. (ECF No. 92.) On May 10, 2017,
petitioner filed the instant motion to reopen. (ECF No. 94.)
Court concludes that good cause exists to reopen this action
pursuant to Federal Rule of Civil Procedure 60(b) now that
petitioner has exhausted his appeal. The Court will therefore
direct that this action be reopened and respondents will be
ordered to answer or otherwise respond to the petition in
MOTION FOR APPOINTMENT OF COUNSEL
moves for re-appointment of counsel. (ECF No. 100).
Respondents have opposed (ECF No. 103), and petitioner has
replied (ECF No. 105).
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).
was previously appointed counsel, whom he moved to withdraw
when counsel would not file a motion for reconsideration. The
operative petition in this action was drafted by counsel, and
petitioner has otherwise been able to fairly present his
arguments. Accordingly, the Court declines to re-appoint
counsel in this matter.
has also filed several other miscellaneous motions. After
duly considering each motion, the Court concludes that
petitioner's “Motion to Dismiss Opposition to
Re-open” (ECF No. 101), “Motion to Strike and/or
Dismiss for Failure to State Claim” (ECF No. 113), and
motion seeking respondents' default (ECF No. 115) are
without merit and must be denied. Petitioner's motion for
leave to file (ECF No. 114) is granted. Petitioner's
motions for leave to file supplemental evidence (ECF Nos. 102
& 109) are denied without prejudice.
Court further finds good cause to grant respondents'
motions for late ...