United States District Court, D. Nevada
MIRANDA M. DU UNITED STATES DISTRICT JUDGE.
Court notes at the outset that no courtesy copies-except as
specified at the conclusion of this order-are required in
this case at this time.
Yadhir Gonzales submitted a petition for a writ of habeas
corpus and has now paid the filing fee. (ECF Nos. 1-1, 6.)
The Court has reviewed the petition pursuant to Habeas Rule
4, and it will be docketed and served on Respondents.
petition for federal habeas corpus should include all claims
for relief of which Petitioner is aware. If Petitioner fails
to include such a claim in his petition, he may be forever
barred from seeking federal habeas relief upon that claim.
See 28 U.S.C. §2254(b) (successive petitions).
If Petitioner is aware of any claim not included in his
petition, he should notify the Court of that as soon as
possible, perhaps by means of a motion to amend his petition
to add the claim.
has also submitted a motion for appointment of counsel. (ECF
No. 1-2.) There is no constitutional right to appointed
counsel for a federal habeas corpus proceeding. See
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.
See 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). Here, Gonzales
argues that he does not speak English well enough to litigate
his petition pro se. However, he also acknowledges
that another inmate assisted him in preparing his petition,
his petition is reasonably clear in presenting the issues
that he wishes to raise, and the legal issues do not appear
to be particularly complex. Therefore, counsel is not
justified. Gonzales' motion is denied.
therefore ordered that the Clerk of Court file and
electronically serve the petition (ECF No. 1-1) on the
further ordered that the Clerk of Court add Aaron D. Ford,
Nevada Attorney General, as counsel for Respondents.
further ordered that Respondents must file a response to the
petition, including potentially by motion to dismiss, within
90 days of service of the petition, with any requests for
relief by Petitioner by motion otherwise being subject to the
normal briefing schedule under the local rules. Any response
filed must also comply with the remaining provisions below,
which are entered pursuant to Habeas Rule 5.
further ordered that 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 defenses omitted from such motion to dismiss will
be subject to potential waiver. Respondents may 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 will 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). In short, no procedural
defenses, including exhaustion, may be included with the
merits in an answer. All procedural defenses, including
exhaustion, instead 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 any, regarding each claim within the
response as to that claim.
further ordered that Petitioner will have 45 days from
service of the answer, motion to dismiss, or other response
to file a reply or opposition, with any other requests for
relief by respondents by motion otherwise being subject to
the normal briefing schedule under the local rules.
further ordered that any additional state court record
exhibits filed herein by either Petitioner or Respondents
must be filed with a separate index of exhibits identifying
the exhibits by number. The CM/ECF attachments that are filed
further will be identified by the number or numbers of the
exhibits in the attachment.
further ordered that, at this time, the parties must send
courtesy copies of any responsive pleading or motion and all
indices of exhibits only to the Reno Division of this Court.
Courtesy copies should be mailed to the Clerk of Court, 400
S. Virginia St., Reno, NV, 89501, and directed to the
attention of “Staff Attorney” on the outside of
the mailing address label. No. further courtesy copies are
required unless and until requested by the Court.
further ordered that the Clerk of Court will detach and file
Petitioner's motion for appointment of counsel (ECF No.