Loucks v. Neven et al

Filing 3

ORDER that petitioners application to proceed in forma pauperis 1 is GRANTED. Petitioner shall not be required to pay a filing fee to file his habeas corpus petition. The motion for appointment of counsel 2 is denied. The Clerk shall FILE and EL ECTRONICALLY SERVE the petition upon the respondents. Respondents shall have forty-five (45) days from entry of this order within which to answer, or otherwise respond to, the petition. Signed by Judge Miranda M. Du on 6/14/12. (Copies have been distributed pursuant to the NEF - ECS)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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LONNIE J. LOUCKS,

Case No. 2:12-cv-00881-MMD-CWH
Petitioner,

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ORDER
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v.
D.W. NEVEN, et al.,
Respondents.

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The petitioner has presented the Court with a motion for appointment of

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counsel (ECF No. 2), a petition for writ of habeas corpus pursuant to 28 U.S.C. §2254

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(received May 23, 2012) and an application to proceed in forma pauperis (ECF No. 1).

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The petitioner’s application to proceed in forma pauperis, including the

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financial certificate, establishes that the petitioner qualifies for in forma pauperis status.

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He shall be granted leave to proceed in forma pauperis, and shall not be required to pay

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the filing fee for his habeas corpus petition.

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docketed.

The motions will be ordered filed and

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The motion for appointment of counsel shall be denied without prejudice at

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this time. The decision to appoint counsel is generally discretionary. Chaney v. Lewis,

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

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

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constitutional right to appointed counsel for a federal habeas corpus proceeding.

There is no

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

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(9th Cir. 1993). However, counsel must be appointed if the complexities of the case are

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such that denial of counsel would amount to a denial of due process, and where the

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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

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Cir. 1970). The claims in this case are not especially complex. Also, the Court notes

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that the petition is drafted in an understandable and organized manner, which

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demonstrates to the Court that petitioner is able to fairly present his claims. Petitioner’s

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motion shall be denied.

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

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which petitioner is aware. If petitioner fails to include such a claim in his petition, he may

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be forever barred from seeking federal habeas relief upon that claim. See 28 U.S.C.

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§2254(b) (successive petitions). If petitioner is aware of any claim not included in his

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petition, he should notify the Court of that as soon as possible, perhaps by means of a

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motion to amend his petition to add the claim.
IT IS THEREFORE ORDERED that petitioner’s application to proceed in

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forma pauperis (ECF No. 1) is GRANTED.

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filing fee to file his habeas corpus petition.
IT IS FURTHER ORDERED that the motion for appointment of counsel

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(ECF No. 2) is denied.
IT

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Petitioner shall not be required to pay a

IS

FURTHER

ORDERED

that

the

Clerk

shall

FILE

and

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

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

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days from entry of this order within which to answer, or otherwise respond to, the

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petition.

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presented by petitioner in his petition as well as any claims presented by petitioner in

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any amended petition or statement of additional claims. Respondents shall raise all

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

In their answer or other response, respondents shall address any claims

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exhaustion and procedural default.

Successive motions to dismiss will not be

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entertained. If an answer is filed, respondents shall comply with the requirements of

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Rule 5 of the Rules Governing Proceedings in the United States District Courts under 28

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U.S.C. §2254. If an answer is filed, petitioner shall have forty-five (45) days from the

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date of service of the answer to file a reply.

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IT FURTHER IS ORDERED that any state court record exhibits filed by

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respondents herein shall be filed with a separate index of exhibits identifying the exhibits

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

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the number or numbers (or letter or letters) of the exhibits in the attachment. The hard

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copy of any additional state court record exhibits shall be forwarded

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for this case

to

the staff attorneys in Reno.

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

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

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document he submits for consideration by the Court. Petitioner shall include with the

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original paper submitted for filing a certificate stating the date that a true and correct

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copy of the document was mailed to the Attorney General. The Court may disregard any

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paper that does not include a certificate of service. After respondents appear in this

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action, petitioner shall make such service upon the particular Deputy Attorney General

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assigned to the case.

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ENTERED THIS 14th day of June 2012.

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UNITED STATES DISTRICT JUDGE
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