Adkins v. Neven et al

Filing 15

ORDER Denying 6 Petitioner's Motion for District Judge to Reconsider Order. IT IS FURTHER ORDERED that 13 and 14 Motions to File a Late Pleading are GRANTED. IT IS FURTHER ORDERED that respondents are GRANTED 45 days from the entry of this order in which to answer, or otherwise respond to, the petition. Signed by Judge James C. Mahan on 7/21/2014. (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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FREDERICK W. ADKINS,
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Petitioner,
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vs.
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DWIGHT NEVEN, et al.,
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Respondents.
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____________________________________/

2:13-cv-02170-JCM-PAL
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. By order filed April 17, 2014, this court granted petitioner’s application
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to proceed in forma pauperis, denied petitioner’s motion for the appointment of counsel, and
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directed respondents to file a response to the petition within forty-five days. (ECF No. 4).
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Petitioner has filed a motion for reconsideration of this court’s order denying his motion for
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the appointment of counsel. (ECF No. 6). Respondents oppose petitioner’s motion. (ECF No. 9).
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Petitioner has filed a reply. (ECF No. 12).
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In challenging an interlocutory order, a district court may rescind, reconsider, or amend a
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previous order pursuant to its inherent power to modify interlocutory orders before the entry of final
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judgment. City of Los Angeles, Harbor Div. v. Santa Monica Baykeeper, 254 F.3d 882, 886-87 (9th

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Cir. 1987). In this case, petitioner seeks reconsideration of this court’s order of April 17, 2014,

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denying the appointment of counsel. Pursuant to 18 U.S.C. § 3006(a)(2)(B), the district court has

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discretion to appoint counsel when it determines that the “interests of justice” require representation.

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There is no constitutional right to appointed counsel for a federal habeas corpus proceeding.

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

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1993). The decision to appoint counsel is generally discretionary. Chaney v. Lewis, 801 F.2d 1191,

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1196 (9th Cir. 1986), cert. denied, 481 U.S. 1023 (1987); Bashor v. Risley, 730 F.2d 1228, 1234 (9th

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Cir.), cert. denied, 469 U.S. 838 (1984). In denying petitioner’s motion for the appointment of

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counsel, this court found that the petition on file is well-written and sufficiently clear in presenting

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the issues that petitioner wishes to bring. The court further found that the issues in this case are not

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complex. In his motion for reconsideration, petitioner states that he has mental health issues that

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hinder his ability to litigate this case. The court is not convinced that petitioner suffers from a degree

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of mental illness that would prevent him from proceeding in this action pro se. The court takes

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judicial notice of the fact that petitioner has filed at least three pro se civil rights actions in this court,

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including: 2:14-cv-626-MMD-VCF (still pending); 3:12-cv-581-LRH-VPC (dismissed due to

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plaintiff’s fraud on the court); and 3:09-cv-628-ECR-WGC (dismissed pursuant to settlement

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agreement). Petitioner’s other pro se filings in this court tend to demonstrate that petitioner is

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capable of representing his interests in this habeas corpus proceeding. Petitioner has failed to make

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the requisite showing that the interests of justice require the appointment of counsel in this case.

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Petitioner’s motion for reconsideration is denied.

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Respondents filed a motion to file a late pleading (ECF No. 13) and a motion for an

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enlargement of time in which to file their response to the petition (ECF No. 14). Respondents seek

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an extension of time to file a response to the petition, until after the court issues an order on

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petitioner’s motion for reconsideration. Good cause appearing, respondents’ motions are granted.

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IT IS THEREFORE ORDERED that petitioner’s motion for reconsideration of the order
denying the appointment of counsel (ECF No. 6) is DENIED.
IT IS FURTHER ORDERED that respondents’ motion to file a late pleading (ECF No. 13)
and motion for an enlargement of time (ECF No. 14) are GRANTED.

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IT IS FURTHER ORDERED that respondents are GRANTED 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 all claims presented in the petition. Respondents shall

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

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

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

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

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

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July 21, 2014.
Dated this ______ day of July, 2014.

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UNITED STATES DISTRICT JUDGE
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