Joyce v. Neven et al

Filing 9

ORDER Denying without prejudice as moot 1 Motion/Application for Leave to Proceed in forma pauperis. IT IS FURTHER ORDERED that 2 Motion to Appoint Counsel is DENIED. IT IS FURTHER ORDERED that the Clerk of Court shall file petition, add Atto rney General Catherine Cortez Masto as counsel for respondents and make informal service of both petition and this order upon respondents through her office. Respondents shall have 60 days from entry of this order to respond to petition. Petitioner shall have 30 days from service of the answer, motion to dismiss, or other response to file a response or opposition. Signed by Judge Jennifer A. Dorsey on 10/15/2013. (Copies have been distributed pursuant to the NEF - cc: AGNV - EDS)

1
2
3
4
5

UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

6
7
8
DAVID JOYCE,
9
Petitioner,

Case No. 2:12-cv-02216-JAD-NJK

10
vs.
11
ORDER
12
13

D. NEVEN, et al.,
Respondents.

14
15

This habeas matter comes before the Court on petitioner’s application (Dkt. #1) to

16

proceed in forma pauperis, on his motion (Dkt. #2) for appointment of counsel, and for

17

initial review of the petition under Rule 4 of the Rules Governing Section 2254 Cases.

18
19
20

Petitioner has paid the filing fee, and the pauper application therefore will be denied
without prejudice as moot.
On the motion for appointment of counsel, the Sixth Amendment right to counsel

21

does not apply in habeas corpus actions. See Knaubert v. Goldsmith, 791 F.2d 722, 728

22

(9th Cir. 1986). However, 18 U.S.C. § 3006A(a)(2)(B) authorizes a district court to appoint

23

counsel to represent a financially eligible habeas petitioner whenever "the court

24

determines that the interests of justice so require." The decision to appoint counsel lies

25

within the discretion of the court; absent an order for an evidentiary hearing, appointment

26

is mandatory only when the circumstances of a particular case indicate that appointed

27

counsel is necessary to prevent a due process violation. See, e.g., Chaney v. Lewis, 801

28

F.2d 1191, 1196 (9th Cir.1986); Eskridge v. Rhay, 345 F.2d 778, 782 (9th Cir.1965).

1

Petitioner has demonstrated a more than adequate ability to articulate his position,

2

given in particular the extensive vocabulary that he has exhibited throughout his filings.

3

Moreover, the issues in the case do not appear to be so complex as to be beyond the

4

ability of a pro se litigant to present them adequately. While almost any pro se litigant

5

would be better served by the appointment of counsel, that is not the standard for

6

appointment. There is no constitutional right to active legal assistance in a federal habeas

7

proceeding, whether by counsel or by an inmate law clerk. Absent circumstances not

8

presented here, such cases typically are litigated by the petitioner pro se.

9

Following upon the Court’s initial review of the petition, a response will be directed.

10

IT THEREFORE IS ORDERED that petitioner’s application (#1) to proceed in forma

11
12
13
14

pauperis is DENIED without prejudice as moot as petitioner has paid the filing fee.
IT IS FURTHER ORDERED that petitioner’s motion (#2) for appointment of counsel
is DENIED.
IT IS FURTHER ORDERED that the Clerk of Court shall file the petition, shall add

15

Attorney General Catherine Cortez Masto as counsel for respondents, and shall make

16

informal electronic service of both the petition and this order upon respondents through her

17

office in a manner consistent with the Clerk’s current practice.

18

IT IS FURTHER ORDERED that respondents shall have sixty (60) days from entry

19

of this order within which to respond (including potentially by motion to dismiss) to the

20

petition. Any response filed shall comply with the remaining provisions below,

21

which are tailored to this particular case based upon the court's screening of the

22

matter and which are entered pursuant to Habeas Rule 4.

23

IT IS FURTHER ORDERED that any procedural defenses raised by respondents in

24

this case shall be raised together in a single consolidated motion to dismiss. In other

25

words, the Court does not wish to address any procedural defenses raised herein either in

26

seriatum fashion in multiple successive motions to dismiss or embedded in the answer.

27

Procedural defenses omitted from such motion to dismiss will be subject to potential

28

waiver. Respondents shall not file a response in this case that consolidates their
-2-

1

procedural defenses, if any, with their response on the merits, except pursuant to 28

2

U.S.C. § 2254(b)(2) as to any unexhausted claims clearly lacking merit. If respondents

3

seek dismissal of unexhausted claims under § 2254(b)(2): (a) they shall do so within the

4

single motion to dismiss not in the answer; and (b) they shall specifically direct their

5

argument to the standard for dismissal under § 2254(b)(2) set forth in Cassett v. Stewart,

6

406 F.3d 614, 623-24 (9th Cir. 2005). In short, no procedural defenses, including

7

exhaustion, shall be included with the merits in an answer; instead they must be raised by

8

motion to dismiss.
IT IS FURTHER ORDERED that, in any answer filed on the merits, respondents

9
10

shall specifically cite to and address the applicable state court written decision and state

11

court record materials, if any, regarding each claim within the response as to that claim.
IT IS FURTHER ORDERED that, at the same time as their initial response, and

12
13

without regard to whether the initial response is a motion to dismiss or instead an answer,

14

respondents shall file a single set of state record exhibits relevant to the petition, in

15

chronological order and indexed as discussed infra.
IT IS FURTHER ORDERED that all state court record exhibits filed herein shall be

16
17

filed with a separate index of exhibits identifying the exhibits by number. The CM/ECF

18

attachments that are filed further shall be identified by the number or numbers of the

19

exhibits in the attachment, in the same manner as in No. 3:06-cv-00087-ECR-VPC, ##

20

25-71. The purpose of this provision is so that the court and any reviewing court thereafter

21

will be able to quickly determine from the face of the electronic docket sheet which exhibits

22

are filed in which attachments. In short, counsel shall not file exhibits in a manner that

23

requires this court or a reviewing court to go fishing through multiple unmarked

24

attachments to find specific exhibits.
IT IS FURTHER ORDERED that counsel additionally shall send a hard copy of all

25
26

exhibits filed for this case to the Las Vegas Clerk's Office.

27

///

28

///
-3-

1
2
3

IT IS FURTHER ORDERED that petitioner shall have thirty (30) days from service
of the answer, motion to dismiss, or other response to file a response or opposition.
DATED: October 15, 2013.

4
5
6

____________________________________
JENNIFER A DORSEY
United States District Judge

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-4-