United States District Court, D. Nevada
MIRANDA M. DU UNITED STATES DISTRICT JUDGE
pro se petition for writ of habeas corpus pursuant
to 28 U.S.C. § 2254 comes before the Court on
Petitioner's application for leave to proceed in
forma pauperis (ECF No. 1), motion for appointment of
counsel (ECF No. 1-2), and for initial review pursuant to
Rule 4 of the Rules Governing Section 2254 Proceedings in the
United States District Courts.
review of the pauper application, the Court finds that
Petitioner cannot pay the filing fee. The application for
leave to proceed in forma pauperis will therefore be
to Petitioner's motion for appointment of counsel, the
motion will be denied. 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); Bashor v. Risley, 730 F.2d 1228, 1234 (9th
Cir. 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). The Petition in
this case appears sufficiently clear in presenting the issues
that Petitioner wishes to raise, and the legal issues are not
particularly complex. Therefore, counsel is not justified.
review of the Petition, the Court will dismiss with prejudice
Petitioner's claim that his Eleventh Amendment rights
have been violated and will direct a response on
Petitioner's remaining claims.
Eleventh Amendment protects the states' sovereign
immunity. It is not a right afforded to the Petitioner that
he can assert in a habeas petition. Accordingly,
Petitioner's claim under the Eleventh Amendment will be
dismissed with prejudice.
therefore ordered that the application for leave to proceed
in forma pauperis (ECF No. 1) is granted. Petitioner
will not be required to pay the filing fee.
further ordered that the Clerk of Court file the Petition
(ECF No. 1-1). The Clerk also is instructed to file the
motion for appointment of counsel (ECF No. 1-2) and reflect
that it has been denied by this Order.
further ordered that Petitioner's claim under the
Eleventh Amendment is dismissed with prejudice.
further ordered that Petitioner's motion for appointment
of counsel (ECF No. 1-2) is denied.
further ordered that the Clerk informally electronically
serve the Nevada Attorney General with a copy of the Petition
and this Order.
further ordered that Respondents will have sixty (60) days
from entry of this Order within which to respond to the
remaining claims of the Petition-namely that Petitioner's
Fifth and Fourteenth Amendment rights have been violated. Any
response filed must comply with the remaining provisions
further ordered that any procedural defenses raised by
Respondents in this case must be raised together in a single
consolidated motion to dismiss. 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 must do so within the single motion to dismiss, not in
the answer; and (b) they must 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). All procedural defenses,
including exhaustion, 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 ...