United States District Court, D. Nevada
M. NAVARRO UNITED STATES DISTRICT JUDGE.
Anthony Bailey, a pro se Nevada prisoner, commenced
this habeas action by filing an Application to Proceed In
Forma Pauperis (ECF No. 1), Petition for Writ of Habeas
Corpus pursuant to 28 U.S.C. § 2254 (ECF No. 1-1),
Declaration (ECF No. 1-2), Appendix (ECF No. 1-3), and Motion
for Appointment of Counsel (ECF No. 1-4). This matter is
before the Court for initial review under the Rules Governing
Section 2254 Cases.
to 28 U.S.C. § 1915 and LSR 1-1 of the Local Rules of
Practice, any person who is unable to prepay the fees in a
civil case may request permission to proceed in forma
pauperis (“IFP”). Indigent prisoners who do
not have the money to pay the five dollar ($5.00) filing fee
for a habeas petition may apply for IFP status. A
prisoner's IFP application must be submitted on the form
provided by the court and include specific financial
documents. 28 U.S.C. § 1915; LSR 1-1, LSR 1-2. The Court
has considered Bailey's IFP application along with the
attached financial documents and concludes that he cannot pay
the $5.00 filing fee. The IFP application will therefore be
to Habeas Rule 4, the assigned judge must examine the habeas
petition and order a response unless it “plainly
appears” that the petitioner is not entitled to relief.
See Valdez v. Montgomery, 918 F.3d 687, 693 (9th
Cir. 2019). This rule allows courts to screen and dismiss
petitions that are patently frivolous, vague, conclusory,
palpably incredible, or false. Hendricks v. Vasquez,
908 F.2d 490, 491 (9th Cir. 1990) (collecting cases). The
court may also dismiss claims at screening for procedural
defects. See Boyd v. Thompson, 147 F.3d 1124, 1128
(9th Cir. 1998).
challenges a conviction and sentence imposed by the Eighth
Judicial District Court for Clark County, Nevada. A jury
found him of guilty of sexual assault without use of deadly
weapon, possession or sale of document or personal
identifying info to establish false status, and coercion. He
was sentenced to life with the possibility of parole after 10
years for sexual assault, 16-48 months on the possession
charge, running consecutive to the sexual assault, and six
months for coercion, running concurrent to sexual
assault. Bailey alleges 17 grounds for relief.
Having conducted an initial review of the petition, the Court
will direct service of the petition and a response.
to Bailey's motion for appointment of counsel, the motion
will be denied. There is no constitutional right to appointed
counsel in a federal habeas corpus proceeding. See Luna
v. Kernan, 784 F.3d 640, 642 (9th Cir. 2015) (citing
Lawrence v. Florida, 549 U.S. 327, 336-37 (2007)).
However, an indigent petitioner seeking relief under §
2254 may request the appointment of counsel to pursue that
relief. 18 U.S.C. § 3006A(a)(2)(B). The court has
discretion to appoint counsel when the interests of justice
so require. 18 U.S.C. § 3006A(a)(2). The interests of
justice so require “when the complexities of the case
are such that denial of counsel would amount to a denial of
due process.” Brown v. United States, 623 F.2d
54, 61 (9th Cir. 1980). In the absence of such circumstances,
a request for counsel in a § 2254 proceeding is
addressed to the sound discretion of the district court.
Id. (citing Dillon v. United States, 307
F.2d 445, 447 (9th Cir. 1962)). When a habeas petitioner has
a good understanding of the issues and the ability to present
forcefully and coherently his contentions, no attorney is
legally required. LaMere v. Risley, 827 F.2d 622,
626 (9th Cir. 1987).
asserts that he is unable to afford counsel and he cannot
represent himself because the substantive issues and
procedural matters in this case are too complex for his
comprehension and abilities. He also asserts that discovery
will be necessary to obtain things he cannot obtain himself
as an incarcerated inmate. As to discovery, the Court's
review of a § 2254 petition is generally limited to the
record that was before the state courts. Cullen v.
Pinholster, 563 U.S. 170, 181-82 (2011). At this
juncture the Court cannot determine whether circumstances
exist in this case that would nonetheless justify a grant of
discovery, and the Court will not appoint counsel based on a
speculative possibility of discovery. Although Bailey is
serving a lengthy sentence, the state court docket and
Bailey's petition show that the issues in this case are
not particularly complex. Bailey has demonstrated sufficient
ability to write and articulate his claims and requests in
the petition and accompanying motion, and IFP application.
Moreover, a review of Bailey's filings indicate he is
sufficiently able to comprehend the “complex”
issues raised by his habeas claims. Bailey has not shown that
denial of counsel would violate due process. As such, the
motion is denied without prejudice.
IS THEREFORE ORDERED:
1. Petitioner Anthony Bailey's Application to Proceed
In Forma Pauperis (ECF No. 1) is GRANTED. Petitioner
is permitted to maintain this action to conclusion without
paying the filing fee.
2. Bailey's Motion for Appointment of Counsel (ECF No.
1-4) is DENIED without prejudice.
3. The Clerk of Court is directed to file the petition (ECF
4. The Clerk of Court is instructed to add Nevada Attorney
General Aaron D. Ford as counsel for Respondents and
electronically serve the Nevada Attorney General with a copy
of the petition and this order.
5. Respondents will have 60 days from the date the petition
is electronically served to appear in this action and answer
or otherwise respond to the petition.
6. If Respondents file an answer to the petition, Bailey will
have 60 days to file a reply to the answer. If Respondents
file a motion to dismiss instead of an answer, the parties
will brief the motion in accordance ...