Romero v. Williams et al

Filing 9

ORDER that the Clerk shall electronically serve 6 Petition for Writ of Habeas Corpus filed by Carlos Lobato Romero on the respondents. IT IS FURTHER ORDERED that respondents shall have 45 days to answer, or otherwise respond. IT IS FURTHER ORDERED that 2 and 7 Petitioners' Motions to Appoint Counsel are DENIED without prejudice. Signed by Judge Roger L. Hunt on 7/18/11. (Copies have been distributed pursuant to the NEF - EDS)

1
2
3
4
5
6
7
UNITED STATES DISTRICT COURT
8
DISTRICT OF NEVADA
9
10
CARLOS LOBATO ROMERO,
11
Petitioner,
12
vs.
13
14

BRIAN WILLIAMS, et al.,

15

Respondents.

)
)
)
)
)
)
)
)
)
)
/

2:11-cv-00679-RLH-RJJ
ORDER

16
17
18

Carlos Lobato Romero, a Nevada prisoner, has submitted a second petition for a writ of
habeas corpus (docket #6) in response this court’s order dated June 20, 2011 (docket #5).

19

The habeas petition (docket #6) shall be served upon the respondents.

20

A petition for federal habeas corpus should include all claims for relief of which petitioner is

21

aware. If petitioner fails to include such a claim in his petition, he may be forever barred from seeking federal

22

habeas relief upon that claim. See 28 U.S.C. §2254(b) (successive petitions). If petitioner is aware of any

23

claim not included in his petition, he should notify the court of that as soon as possible, perhaps by means of

24

a motion to amend his petition to add the claim.

25

Petitioner has also submitted an ex parte motion for the appointment of counsel (docket #2)

26

and a second motion for appointment of counsel (docket #7). There is no constitutional right to appointed

1

counsel for a federal habeas corpus proceeding. Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); Bonin

2

v. Vasquez, 999 F.2d 425, 428 (9th Cir.1993). The decision to appoint counsel is generally discretionary.

3

Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir.1986), cert. denied, 481 U.S. 1023 (1987); Bashor v.

4

Risley, 730 F.2d 1228, 1234 (9th Cir.), cert. denied, 469 U.S. 838 (1984). However, counsel must be

5

appointed if the complexities of the case are such that denial of counsel would amount to a denial of due

6

process, and where the petitioner is a person of such limited education as to be incapable of fairly presenting

7

his claims. See Chaney, 801 F.2d at 1196; see also Hawkins v. Bennett, 423 F.2d 948 (8th Cir.1970). The

8

petition on file in this action appears sufficiently clear in presenting the issues that petitioner wishes to raise.

9

Counsel is not justified at this time. The motions are both denied without prejudice.

10
11

IT IS THEREFORE ORDERED that the Clerk shall ELECTRONICALLYSERVE the
petition (docket #6) on the respondents.

12

IT IS FURTHER ORDERED that respondents shall have forty-five (45) days from entry

13

of this order within which to answer, or otherwise respond to, the petition. In their answer or other response,

14

respondents shall address any claims presented by petitioner in his petition as well as any claims presented by

15

petitioner in any Statement of Additional Claims. Respondents shall raise all potential affirmative defenses in

16

the initial responsive pleading, including lack of exhaustion and procedural default. Successive motions to

17

dismiss will not be entertained. If an answer is filed, respondents shall comply with the requirements of Rule

18

5 of the Rules Governing Proceedings in the United States District Courts under 28 U.S.C. §2254. If an

19

answer is filed, petitioner shall have forty-five (45) days from the date of service of the answer to file a reply.

20

IT IS FURTHER ORDERED that, henceforth, petitioner shall serve upon the Attorney

21

General of the State of Nevada a copy of every pleading, motion, or other document he submits for

22

consideration by the court. Petitioner shall include with the original paper submitted for filing a certificate stating

23

the date that a true and correct copy of the document was mailed to the Attorney General. The court may

24

disregard any paper that does not include a certificate of service. After respondents appear in this action,

25

petitioner shall make such service upon the particular Deputy Attorney General assigned to the case.

26
2

1
2

IT IS FURTHER ORDERED that petitioner’s ex parte motion for appointment of counsel
(docket #2) and motion for appointment of counsel (docket #7) are DENIED without prejudice.

3
4

Dated this 18th day of July, 2011.

5
6

___________________________________
UNITED STATES DISTRICT JUDGE

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
3