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.
Jonathan Moncada has filed a 28 U.S.C. § 2254 habeas
corpus petition (ECF No. 1-1). His application to proceed in
forma pauperis is granted. The Court has reviewed the
petition pursuant to Habeas Rule 4, and will order that it be
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,
Petitioner explains that another inmate assisted him in
preparing his petition (ECF No. 1-2). However,
Petitioner's petition clearly presents the issues that he
wishes to raise, and the legal issues do not appear to be
particularly complex. Therefore, counsel is not justified.
Petitioner's motion for appointment of counsel is denied.
therefore ordered that Petitioner's application to
proceed in forma pauperis (ECF No. 1) is granted.
further ordered that the Clerk of Court will detach, file and
electronically serve the petition (ECF No. 1-1) on the
further ordered that the Clerk of Court will add Aaron D.
Ford, Nevada Attorney General, as counsel for Respondents.
further ordered that the Clerk of Court will detach and file
Petitioner's motion for appointment of counsel (ECF No.
further ordered that Petitioner's motion for appointment
of counsel is denied.
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 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 must 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 will 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 ...