United States District Court, D. Nevada
MIRANDA M. DU, CHIEF UNITED STATES DISTRICT JUDGE
Justin Odell Langford, a pro se individual in the
custody of the Nevada Department of Corrections, commenced
this habeas action by filing a Petition for Writ of Habeas
Corpus pursuant to 28 U.S.C. § 2254 (ECF No. 1-1),
Motion for Appointment of Counsel (ECF No. 1-5), and Motion
to File Extended Petition (ECF No. 1-6), attaching a 164-page
“Memorandum of Law” and 123 pages of exhibits
(ECF Nos. 1-2, 1-3). This matter is before the Court for
initial review under the Rules Governing Section 2254
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. A jury found him of
guilty of lewdness with a child under the age of 14 and he
was sentenced to 10 years to life imprisonment. Having conducted
an initial review of the Petition, the Court will direct
service of the Petition and a response. However, the motion
to file an extended petition is denied. Habeas Rule 2
requires petitioners to file a petition on the court's
approved § 2254 petition form or in substantial
compliance with the form. The form instructs a petitioner to
describe his claims without incorporating other documents by
reference and without extended legal argument and case
citation. The form is not a cover document to which a
petitioner attaches a lengthy legal memorandum and extensive
legal argument. Langford's memorandum of law and exhibits
are unnecessary as the Petition appears sufficiently clear in
presenting the issues that Langford wishes to raise.
to Langford'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
understanding. 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 Langford is
serving a lengthy sentence, the state court docket and
Langford's Petition indicate that the issues in this case
are not particularly complex. Langford has demonstrated
sufficient ability to write and articulate his claims and
requests in the Petition, accompanying motions, and
memorandum. Moreover, a review of Langford's filings
indicate he is sufficiently able to comprehend the
“complex” issues raised by his habeas claims.
Langford has not shown that denial of counsel would violate
due process. As such, the motion is denied.
therefore ordered that Petitioner's motion for
appointment of counsel (ECF No. 1-5) and motion to file
extended petition (ECF No. 1-6) are denied without prejudice.
further ordered that the Clerk of Court file the Petition
(ECF No. 1-1).
further ordered that the Clerk 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.
further ordered that Respondents will have 90 days from the
date the Petition is electronically served to appear in this
action and answer or otherwise respond to the Petition.
further ordered that if Respondents file an answer to the
Petition, Langford 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 with
LR 7-2 and 7-3 of the Local Rules of Practice.
further ordered that any procedural defenses Respondents
raise in this case must be raised together in a single
consolidated motion to dismiss. Procedural defenses omitted
from such motion to dismiss will be subject to potential
waiver. Respondents will 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) as set forth
in Cassett v. Stewart, 406 F.3d 614, 623-24 (9th
Cir. 2005). In short, procedural defenses, including
exhaustion, must not 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 Respondents must file the state court
exhibits relevant to their response to the ...