Speake v. Neven et al

Filing 6

ORDER Granting 1 Motion/Application for Leave to Proceed in forma pauperis. IT IS FURTHER ORDERED that 2 Motion to Appoint Counsel is DENIED. Clerk of Court shall file and electronically serve petition. Respondents shall have 45 days from entry of this order to answer or respond to petition. Signed by Judge Jennifer A. Dorsey on 2/3/14. (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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LANCE E. SPEAKE,
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Petitioner,
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vs.
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D. NEVEN, et al.,
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Respondents.
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____________________________________/

Case No. 2:13-cv-02015-JAD-NJK
ORDER

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This action is a pro se petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254,
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by a Nevada state prisoner.
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Petitioner has filed a motion to proceed in forma pauperis. (Doc. 1). Based on the
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information regarding petitioner's financial status, the Court finds that the motion to proceed in
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forma pauperis should be granted.
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Petitioner has filed a motion for the appointment of counsel. (Doc. 2). Pursuant to 18 U.S.C.
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§ 3006(a)(2)(B), the district court has discretion to appoint counsel when it determines that the
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“interests of justice” require representation. There is no constitutional right to appointed counsel for
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a federal habeas corpus proceeding. Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); Bonin v.
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Vasquez, 999 F.2d 425, 428 (9th Cir. 1993). The decision to appoint counsel is generally
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discretionary. Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986), cert. denied, 481 U.S. 1023

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(1987); Bashor v. Risley, 730 F.2d 1228, 1234 (9th Cir.), cert. denied, 469 U.S. 838 (1984).

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However, counsel must be appointed if the complexities of the case are such that denial of counsel

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would amount to a denial of due process, and where the petitioner is a person of such limited

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education as to be incapable of fairly presenting his claims. See Chaney, 801 F.2d at 1196; see also

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Hawkins v. Bennett, 423 F.2d 948 (8th Cir. 1970). The petition on file in this action is well-written

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and sufficiently clear in presenting the issues that petitioner wishes to bring. The issues in this case

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are not complex. It does not appear that counsel is justified in this instance. The motion for counsel

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is denied.

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The petition shall now be filed and served on respondents. A petition for federal habeas

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corpus should include all claims for relief of which petitioner is aware. If petitioner fails to include

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such a claim in his petition, he may be forever barred from seeking federal habeas relief upon that

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claim. See 28 U.S.C. §2254(b) (successive petitions).

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IT IS THEREFORE ORDERED that the application to proceed in forma pauperis (Doc. 1)
is GRANTED.
IT IS FURTHER ORDERED that petitioner’s motion for the appointment of counsel (Doc.
2) is DENIED.
IT IS FURTHER ORDERED that the Clerk shall FILE and ELECTRONICALLY
SERVE the petition upon the respondents.

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

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

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

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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 any state court record exhibits filed by respondents shall

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be filed with a separate index of exhibits identifying the exhibits by number or letter. The hard copy

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of all state court record exhibits shall be forwarded, for this case, to the staff attorneys in the Reno

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Division of the Clerk of Court.

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

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

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

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

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

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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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3rd
Dated this ______ day of February, 2014.

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UNITED STATES DISTRICT JUDGE
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