United States District Court, D. Nevada
MIRANDA M. DU UNITED STATES DISTRICT JUDGE
pro se habeas petition pursuant to 28 U.S.C. §
2254 comes before the Court for consideration of
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 under Rule 4 of
the Rules Governing Section 2254 Cases in the United States
review of Petitioner's pauper application, the Court
finds that Petitioner cannot pay the filing fee. The
application for leave to proceed in forma pauperis
will therefore be granted, and Petitioner will not be
required to pay the $5 filing fee.
to Petitioner's motion for appointment of counsel, 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).
petition in this case is sufficiently clear in presenting the
issues that Petitioner wishes to raise, and the issues are
not complex. Therefore, the Court concludes that counsel is
not justified in this case, and the motion for appointment of
counsel will be denied.
review of the Petition, the Court will direct service and a
therefore ordered that Petitioner's 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 Petitioner's motion for appointment
of counsel (ECF No. 1-2) is denied.
further ordered that the Clerk of the Court file the Petition
(ECF No. 1-1).
further ordered that the Clerk file the motion for
appointment of counsel (ECF No. 1-2) and indicate on the
docket that the motion has been denied by way of this order.
further ordered that the Clerk add Aaron D. Ford as attorney
for Respondents and informally electronically serve the
Nevada Attorney General with a copy of the Petition and this
further ordered that Respondents will have 60 days from entry
of this order within which to answer or otherwise respond to
the Petition. Petitioner will have 30 days from the filing of
an answer to file a reply. The time limits for responding and
replying to any motion filed in lieu of an answer will be
governed instead by LR 7-2(b). Any response filed must comply
with the remaining provisions below.
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 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 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 ...