United States District Court, D. Nevada
MIRANDA M. DU CHIEF 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.
Matthew Williams has filed a 28 U.S.C. § 2254 habeas
corpus petition and has now paid the filing fee.
(See ECF Nos. 1-1, 8.) The Court has reviewed the
Petition, pursuant to Habeas Rule 4, and orders the Petition
to 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 filed an ex parte motion for appointment of counsel.
(ECF No. 4.) There is no constitutional right to appointed
counsel for a federal habeas corpus proceeding.
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.
Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir.
1986); Bashor v. Risley, 730 F.2d 1228, 1234 (9th
Cir. 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, the
Petition presents the issues that Petitioner wishes to raise
in a reasonably clear manner, and the legal issues do not
appear to be particularly complex. Therefore, counsel is not
justified. Petitioner's motion is denied.
therefore ordered that the Clerk detach, file and
electronically serve the Petition (ECF No. 1-1) on the
further ordered that the Clerk add Aaron D. Ford, Nevada
Attorney General, as counsel for Respondents.
further ordered that Petitioner's motion for appointment
of counsel (ECF No. 4) is denied.
further ordered that Respondents 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 shall 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 shall 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 seriatim 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 shall 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 shall do
so within the single motion to dismiss not in the answer; and
(b) they shall 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, shall 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 shall 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 shall 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
shall be filed with a separate index of exhibits identifying
the exhibits by number. The CM/ECF attachments that are filed
further shall be identified by the number or numbers of the
exhibits in the attachment.
further ordered that, at this time, the parties shall send
courtesy copies of any responsive pleading or motion and all
indices of exhibits only to the Reno Division of this court.
Courtesy copies shall 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 ...