Davis v. Neven et al

Filing 19

ORDER Granting nunc pro tunc 11 and 12 Motions to Extend Time. Granting 14 Motion to file an amended petition. This action Shall Proceed on the 13 Amended Petition. Denying without prejudice 6 Motion to Dismiss. Denying as moot 17 Application for Leave to Proceed in forma pauperis. Denying 18 Motion to Appoint Counsel. Answer due within 45 days. Signed by Judge James C. Mahan on 6/28/2013. (Copies have been distributed pursuant to the NEF - SLR)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT

8

DISTRICT OF NEVADA

9
10
PAUL DAVIS,
11
12
13
14
15

)
)
Petitioner,
)
)
vs.
)
)
D.W. NEVEN, et al.,
)
)
Respondents.
)
____________________________________/

2:12-cv-00984-JCM-PAL
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. Before the court is respondents’ motion to dismiss the petition (ECF No.
18
6), petitioner’s motion to amend (ECF No. 14), and related matters.
19
Respondents filed a motion to dismiss the petition on December 12, 2012. (ECF No. 6).
20
Plaintiff filed two motions for extensions of time to respond to motion to dismiss. (ECF Nos. 11 &
21
12). These motions are granted tunc pro tunc, such that petitioner’s response to the motion to
22
dismiss is timely. On February 8, 2013, petitioner filed a response to the motion to dismiss in which
23
he requests leave to file an amended petition. (ECF No. 14). On the same date, petitioner’s
24
amended petition was filed by the clerk of court. (ECF No. 13). Good cause appearing and in the
25
interests of justice, petitioner’s motion to amend is granted. Fed. R. Civ. P. 15(a)(2). This action
26

1

shall proceed on the amended petition, filed February 8, 2013. (ECF No. 13). Respondents’ motion

2

to dismiss is denied without prejudice. The court will set a new deadline for a response to the

3

amended petition, as set forth at the conclusion of this order.

4
5
6

Petitioner has filed a motion to proceed in forma pauperis. (ECF No. 17). The motion is
denied as moot, as petitioner has previously paid the filing fee for this action.
Petitioner has filed a motion for the appointment of counsel. (ECF No. 18). There is no

7

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

8

Finley, 481 U.S. 551, 555 (1987); Bonin v. Vasquez, 999 F.2d 425, 428 (9th Cir. 1993). The

9

decision to appoint counsel is generally discretionary. Chaney v. Lewis, 801 F.2d 1191, 1196 (9th

10

Cir. 1986), cert. denied, 481 U.S. 1023 (1987); Bashor v. Risley, 730 F.2d 1228, 1234 (9th Cir.

11

1984), cert. denied, 469 U.S. 838 (1984). However, counsel must be appointed if the complexities

12

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

13

petitioner is a person of such limited education as to be incapable of fairly presenting his claims. See

14

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

15

petition on file in this action is sufficiently clear in presenting the issues that petitioner wishes to

16

bring. The issues in this case are not complex. Counsel is not justified in this instance. The motion

17

for the appointment of counsel is denied.

18

IT IS THEREFORE ORDERED that petitioner’s motions for extensions of time (ECF

19

Nos. 11 & 12) are GRANTED, nunc pro tunc, such that petitioner’s response to the motion to

20

dismiss is timely.

21

IT IS FURTHER ORDERED that petitioner’s motion to file an amended petition (ECF No.

22

14) is GRANTED. This action SHALL PROCEED on the amended petition, filed February 8,

23

2013, at ECF No. 13.

24
25
26

2

1

IT IS FURTHER ORDERED that respondents’ motion to dismiss (ECF No. 6) is DENIED

2

WITHOUT PREJUDICE to renewing such arguments, if applicable, in response to the amended

3

petition.

4

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

5

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

6

other response, respondents shall address all claims presented in the amended petition. Respondents

7

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

8

exhaustion and procedural default. Successive motions to dismiss will not be entertained.

9
10
11
12
13

IT IS FURTHER ORDERED that petitioner’s motion to proceed in forma pauperis (ECF
No. 17) is DENIED as moot.
IT IS FURTHER ORDERED that petitioner’s motion for the appointment of counsel (ECF
No. 18) is DENIED.
28th
Dated this ______ day of June, 2013.

14
15
UNITED STATES DISTRICT JUDGE
16
17
18
19
20
21
22
23
24
25
26

3