United States District Court, D. Nevada
EDWARD A. PRECIADO-NUNO, Petitioner,
ISIDRO BACA, et al. Respondents.
D. MCKIBBEN, UNITED STATES DISTRICT JUDGE
pro se petition for writ of habeas corpus pursuant
to 28 U.S.C. § 2254 comes before the court for initial
review pursuant to Rule 4 of the Rules Governing Section 2254
Cases and petitioner's motion for appointment of counsel
(ECF No. 4). The filing fee has been paid.
review of the petition, the court will direct a response and
deny petitioner's motion for appointment of counsel.
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).
argues that counsel should be appointed because he is not
trained in the law and because the issues in his case are
complex. That petitioner is not trained in the law does not
on its own justify the appointment of counsel. While
petitioner asserts many claims in his petition, and the
Nevada Supreme Court issued a published opinion on two of
them, the court is not persuaded at this juncture that the
issues are particularly complex such that appointment of
counsel is necessary. Accordingly, petitioner's motion
for appointment of counsel will be denied.
THEREFORE ORDERED that petitioner's motion for
appointment of counsel (ECF No. 4) is denied.
FURTHER ORDERED that the clerk shall FILE the amended
petition (ECF No. 1-1).
FURTHER ORDERED that the clerk shall add Nevada Attorney
General Aaron D. Ford as attorney for respondents and
informally electronically serve the Nevada Attorney General
with a copy of the petition and this order.
FURTHER ORDERED that respondents shall file a response to the
petition, including potentially by motion to dismiss, within
sixty (60) days of the date of entry of this order and that
petitioner may file a reply thereto within thirty (30) days
of service of the answer. The response and reply time to any
motion filed by either party, including a motion filed in
lieu of a pleading, shall be governed instead by Local Rule
FURTHER ORDERED that any procedural defenses raised by
respondents in this case shall be raised together in a single
consolidated motion to dismiss. 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). All procedural defenses,
including exhaustion, must be raised by motion to dismiss.
FURTHER ORDERED, 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.
FURTHER ORDERED that respondents shall file a set of state
court exhibits relevant to the response filed to the
petition, in chronological order and indexed as discussed,
FURTHER ORDERED that all state court record exhibits filed
herein 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 or
numbers of the exhibits in the attachment. The purpose of
this provision is so that the court and any reviewing court
thereafter will be able to quickly ...