Barker v. Palmer

Filing 4

ORDER that the application to proceed in forma pauperis 1 is GRANTED. Petitioners motion for the appointment of counsel 2 is DENIED. Clerk to file Petition. Respondents shall have 45 days from entry of this order within which to answer or respond to petition. Signed by Judge James C. Mahan on 3/15/12. (Copies have been distributed pursuant to the NEF - ECS)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 DISTRICT OF NEVADA 9 10 CURTIS BARKER, 11 12 13 14 15 ) ) Petitioner, ) ) vs. ) ) WARDEN PALMER, et al., ) ) Respondents. ) ____________________________________/ 2:11-cv-00440-JCM-CWH ORDER 16 This action is a pro se petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254, 17 by a Nevada state prisoner. Petitioner has filed a motion to proceed in forma pauperis. (ECF No. 1). 18 Based on the information regarding petitioner's financial status, the court finds that the motion to 19 proceed in forma pauperis should be granted. 20 The petition shall now be filed and served on respondents. A petition for federal habeas 21 corpus should include all claims for relief of which petitioner is aware. If petitioner fails to include 22 such a claim in his petition, he may be forever barred from seeking federal habeas relief upon that 23 claim. See 28 U.S.C. §2254(b) (successive petitions). 24 Petitioner has filed a motion for the appointment of counsel. (ECF No. 2). There is no 25 constitutional right to appointed counsel for a federal habeas corpus proceeding. Pennsylvania v. 26 1 Finley, 481 U.S. 551, 555 (1987); Bonin v. Vasquez, 999 F.2d 425, 428 (9th Cir. 1993). The 2 decision to appoint counsel is generally discretionary. Chaney v. Lewis, 801 F.2d 1191, 1196 (9th 3 Cir. 1986), cert. denied, 481 U.S. 1023 (1987); Bashor v. Risley, 730 F.2d 1228, 1234 (9th Cir.), 4 cert. denied, 469 U.S. 838 (1984). In the instant case, the petition on file in this action is well- 5 written and sufficiently clear in presenting the issues that petitioner wishes to bring. The issues in 6 this case are not complex. It does not appear that counsel is not justified in this instance. The 7 motion is denied. 8 9 10 11 12 13 14 IT IS THEREFORE ORDERED that the application to proceed in forma pauperis (ECF No. 1) is GRANTED. IT IS FURTHER ORDERED that petitioner’s motion for the appointment of counsel (ECF No. 2) is DENIED. IT IS FURTHER ORDERED that the clerk shall FILE and ELECTRONICALLY SERVE the petition (ECF No. 1-2) upon the respondents. IT IS FURTHER ORDERED that respondents shall have forty-five (45) days from entry of 15 this order within which to answer, or otherwise respond to, the petition. In their answer or other 16 response, respondents shall address all claims presented in the petition. Respondents shall raise all 17 potential affirmative defenses in the initial responsive pleading, including lack of exhaustion and 18 procedural default. Successive motions to dismiss will not be entertained. If an answer is filed, 19 respondents shall comply with the requirements of Rule 5 of the Rules Governing Proceedings in the 20 United States District Courts under 28 U.S.C. §2254. If an answer is filed, petitioner shall have 21 forty-five (45) days from the date of service of the answer to file a reply. 22 IT IS FURTHER ORDERED that any state court record exhibits filed by respondents shall 23 be filed with a separate index of exhibits identifying the exhibits by number or letter. The hard copy 24 of all state court record exhibits shall be forwarded, for this case, to the staff attorneys in the Reno 25 Division of the Clerk of Court. 26 2 1 IT IS FURTHER ORDERED that, henceforth, petitioner shall serve upon the attorney 2 general of the state of Nevada a copy of every pleading, motion, or other document he submits for 3 consideration by the court. Petitioner shall include with the original paper submitted for filing a 4 certificate stating the date that a true and correct copy of the document was mailed to the attorney 5 general. The court may disregard any paper that does not include a certificate of service. After 6 respondents appear in this action, petitioner shall make such service upon the particular deputy 7 attorney general assigned to the case. 8 15th Dated this ______ day of March, 2012. 9 10 UNITED STATES DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 3