Redeker v. Neven et al

Filing 7

ORDER Granting 2 Motion for Leave to File Excess Pages. Clerk shall File and Electronically Serve the petition upon the respondents. IT IS FURTHER ORDERED that respondents shall have 45 days from the entry of this order within which to answer. I f answer is filed, petitioner shall have 45 days from the date of service of answer to file a reply. IT IS FURTHER ORDERED that 3 Motion to Appoint Counsel is DENIED. IT IS FURTHER ORDERED that 4 Motion for Evidentiary Hearing is DENIED without prejudice. Signed by Judge Kent J. Dawson on 3/21/12. (Copies have been distributed pursuant to the NEF - EDS)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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Arie Robert Redeker,
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Petitioner,
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vs.
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D.W. Neven, et al.,
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Respondents.
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____________________________________/

2:12-cv-00397-KJD-GWF
ORDER

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Arie Robert Redeker, a prisoner at High Desert State Prison, has submitted a pro se
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petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, along with motions for leave to file
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longer petition (ECF No. 2), for appointment of counsel (ECF No. 3) and for an evidentiary hearing
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(ECF No. 4). Petitioner has paid the filing fee for this action. (ECF No. 6). The motion for leave to
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file a longer petition shall be granted and the petition shall now be filed and served on respondents.
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A petition for federal habeas corpus should include all claims for relief of which
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petitioner is aware. If petitioner fails to include such a claim in his petition, he may be forever
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barred from seeking federal habeas relief upon that claim. See 28 U.S.C. §2254(b) (successive
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petitions). If petitioner is aware of any claim not included in his petition, he should notify the Court
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of that as soon as possible, perhaps by means of a motion to amend his petition to add the claim.
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There is no constitutional right to appointed counsel for a federal habeas corpus

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proceeding. Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); Bonin v. Vasquez, 999 F.2d 425, 428

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(9th Cir. 1993). The decision to appoint counsel is generally discretionary. Chaney v. Lewis, 801

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F.2d 1191, 1196 (9th Cir. 1986), cert. denied, 481 U.S. 1023 (1987); Bashor v. Risley, 730 F.2d

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1228, 1234 (9th Cir.), cert. denied, 469 U.S. 838 (1984). However, counsel must be appointed if the

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complexities of the case are such that denial of counsel would amount to a denial of due process, and

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

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

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Petitioner presents a lengthy, but clearly pled petition. His work does not indicate a lack of

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education of any incapacity. The motion for counsel shall be denied.

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The motion for evidentiary hearing shall also be denied at this time. Once the matter

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has proceeded further, the Court will determine if such a hearing is required under 28 U.S.C. §

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2554(e)(2).

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IT IS THEREFORE ORDERED that the Motion for Permission to File Petition in

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Excess of Page Limits (ECF No. 2) is GRANTED. Clerk shall FILE and ELECTRONICALLY

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SERVE the petition (ECF No. 1-1, 1-2) upon the respondents.

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

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

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

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any claims presented by petitioner in any Statement of Additional Claims. Respondents shall raise

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all potential affirmative defenses in the initial responsive pleading, including lack of exhaustion and

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procedural default. Successive motions to dismiss will not be entertained. If an answer is filed,

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respondents shall comply with the requirements of Rule 5 of the Rules Governing Proceedings in the

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United States District Courts under 28 U.S.C. §2254. If an answer is filed, petitioner shall have

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forty-five (45) days from the date of service of the answer to file a reply.

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

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

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submits for consideration by the Court. Petitioner shall include with the original paper submitted for

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filing a certificate stating the date that a true and correct copy of the document was mailed to the

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Attorney General. The Court may disregard any paper that does not include a certificate of service.

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After respondents appear in this action, petitioner shall make such service upon the particular Deputy

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Attorney General assigned to the case.

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IT FURTHER IS ORDERED that any state court record exhibits filed by
respondents herein shall be filed with a separate index of exhibits identifying the exhibits by number

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or letter. The CM/ECF attachments that are filed shall further be identified by the number or

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numbers (or letter or letters) of the exhibits in the attachment. The hard copy of any additional state

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court record exhibits shall be forwarded – for this case – to the staff attorneys in Reno.

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IT FURTHER IS ORDERED the Motion for Appointment of Counsel (ECF No. 3)
is DENIED.
IT IS FURTHER ORDERED that the Motion for Evidentiary Hearing (ECF No. 4)

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is DENIED WITHOUT PREJUDICE.

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DATED: March 21, 2012

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___________________________________
UNITED STATES DISTRICT JUDGE

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