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Toston v. State

United States District Court, D. Nevada

May 17, 2019

MARILYN TOSTON, Petitioner,
v.
STATE OF NEVADA, et al., Respondents.

          ORDER

          Gloria M. Navarro, United States District Court Chief Judge.

         This habeas action under 28 U.S.C. § 2254 comes before the Court on petitioner's application to proceed in forma pauperis (ECF No. 1), her motion for appointment of counsel (ECF No. 3), and her motion to add an additional ground (ECF No. 4), as well as for initial review.

         Pauper Application

         The Court finds based on the current record that petitioner is unable to pay the filing fee within a reasonable period of time, and the pauper application therefore will be granted. The Court reserves the option of requiring petitioner to provide updated and additional financial information should her financial status be at issue later in the case.

         Counsel Motion

         On petitioner's motion for appointment of counsel, the Sixth Amendment right to counsel does not apply in habeas corpus actions. See Knaubert v. Goldsmith, 791 F.2d 722, 728 (9th Cir. 1986). However, 18 U.S.C. § 3006A(a)(2)(B) authorizes a district court to appoint counsel to represent a financially eligible habeas petitioner whenever "the court determines that the interests of justice so require." The decision to appoint counsel lies within the discretion of the court; and, absent an order for an evidentiary hearing, appointment is mandatory only when the circumstances of a particular case indicate that appointed counsel is necessary to prevent a due process violation. See, e.g., Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir.1986).

         The Court is not persuaded that the interests of justice require the appointment of counsel herein. The issues presented are not unduly complex, and petitioner has demonstrated an adequate ability to articulate her claims and arguments with the resources available to her. The relative duration of petitioner's sentence, standing alone, otherwise does not argue in favor of applying limited indigent defender resources.[1]

         The motion for appointment of counsel therefore will be denied.

         Motion to Add Additional Ground

         The federal petition includes five grounds challenging the judgment of conviction and one ground challenging the state court determination that her state post-conviction petition was untimely. Petitioner submitted the motion to add additional ground at the same time as the federal petition, seeking “permission to explore the original five (5) grounds in addition to one more to challenge the procedural time bar.” (ECF No. 4, at 1.)

         The motion will be denied as unnecessary. The additional claim already is in the federal petition, as Ground 1; and the Court's permission to include the claim in the first instance is not required.[2]

         Failure to Sign and Verify the Petition

         Petitioner signed neither the petition nor the verification of the petition. (ECF No. 1-1, at 15.). Rule 11(a) of the Federal Rules of Civil Procedure and Rule 2(b)(5) of the Rules Governing Section 2254 Cases (the “Habeas Rules”) together require that a petitioner sign both the petition and the verification. The Court will give petitioner an opportunity to file a pleading that is both signed and verified. If she does not timely do so, the action will be dismissed without further advance notice.

         Proper ...


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