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Leavitt v. Neven

United States District Court, D. Nevada

January 29, 2018

CODY LEAVITT, Petitioner,
DWIGHT NEVEN, et al., Respondents.



         This 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).

         Petitioner 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. E.[1]) 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.)

         On 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.)

         On 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 petition. (Id.)

         Thereafter, 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.)

         The 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 this case.[2]


         Petitioner moves for re-appointment of counsel. (ECF No. 100). Respondents have opposed (ECF No. 103), and petitioner has replied (ECF No. 105).

         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).

         Petitioner 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.


         Petitioner 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.

         The Court further finds good cause to grant respondents' motions for late ...

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