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Moore v. Howell

United States District Court, D. Nevada

April 8, 2019

EVAN EUGENE MOORE, Petitioner
v.
JERRY HOWELL, et al., Respondents

          ORDER DIRECTING SERVICE OF THE PETITION AND A RESPONSE, GRANTING PETITIONER'S MOTION TO EXCEED PAGE LIMIT AND APPLICATION FOR LEAVE TO PROCEED IN FORMA PAUPERIS, AND DENYING PETITIONER'S MOTION FOR APPOINTMENT OF COUNSEL [ECF NOS. 1, 1-1, 2 & 3]

          Jennifer A. Dorsey, U.S. District Judge.

         Petitioner Evan Eugene Moore brings this petition for writ of habeas corpus under 28 U.S.C. § 2254 to challenge his 2008 state court conviction for first-degree murder with use of a deadly weapon. Having conducted an initial review under Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts, and having considered Moore's application for leave to proceed in forma pauperis, motion for leave to exceed page limit, and motion for appointment of counsel:

         I find that Moore cannot pay the filing fee, so I grant his application for leave to proceed in forma pauperis.

         My initial review of the petition suggests that it should be served on the respondents for a response, so I direct service and a response.

         Moore moves for appointment of counsel.[1] There is no constitutional right to appointed counsel for a federal habeas corpus proceeding.[2] The decision to appoint counsel is generally discretionary.[3] 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.[4] Because the petition and other filings in this case set fort the issues sufficiently clearly, and the issues do not appear to be particularly complex, I find that an appointment of counsel is not justified. I therefore deny the motion for appointment of counsel.

         Accordingly, IT IS THEREFORE ORDERED that Moore's application for leave to proceed in forma pauperis [ECF No. 1] is GRANTED, and Moore will not be required to pay the filing fee.

         IT IS FURTHER ORDERED that Moore's motion for appointment of counsel [ECF No. 2] is DENIED; IT IS FURTHER ORDERED that Moore's motion for leave to exceed page limit [ECF No. 3] is GRANTED;

         IT IS FURTHER ORDERED THAT the Clerk of Court is directed to:

• FILE the petition (ECF No. 1-1);
• 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.

         IT IS FURTHER ORDERED that respondents have until June 7, 2019, to file a response to the petition, including any motion to dismiss; petitioner will then have 30 days from the date of service of that response to file a reply. The response and reply time to any motion filed by either party, including a motion filed in lieu of a pleading, will be governed by Local Rule LR 7-2(b).

         IT IS FURTHER ORDERED that if respondents file a response, they must comply with these requirements, imposed under Habeas Rule 4:

1. Any procedural defenses raised by respondents in this case must be raised together in a single, consolidated motion to dismiss. In other words, the court does not wish to address any procedural defenses raised herein either in seriatum fashion in multiple successive motions to dismiss or embedded in the answer. Procedural ...

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