Adkins v. Neven et al

Filing 4

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 upon respondents. Respondents have 45 days to answer petition. If answer filed, petitioner has 45 days to file a reply. Signed by Judge James C. Mahan on 4/17/2014. (Copies have been distributed pursuant to the NEF - EDS)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 DISTRICT OF NEVADA 9 10 FREDERICK W. ADKINS, 11 12 13 14 15 ) ) Petitioner, ) ) vs. ) ) DWIGHT NEVEN, et al., ) ) Respondents. ) ____________________________________/ 2:13-cv-02170-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. 18 Petitioner has filed a motion to proceed in forma pauperis. (ECF No. 1). Based on the 19 information regarding petitioner's financial status, the court finds that the motion to proceed in forma 20 pauperis should be granted. 21 Petitioner has filed a motion for the appointment of counsel. (ECF No. 2). Pursuant to 18 22 U.S.C. § 3006(a)(2)(B), the district court has discretion to appoint counsel when it determines that 23 the “interests of justice” require representation. There is no constitutional right to appointed counsel 24 for a federal habeas corpus proceeding. Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); Bonin v. 25 Vasquez, 999 F.2d 425, 428 (9th Cir. 1993). The decision to appoint counsel is generally 26 1 discretionary. Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986), cert. denied, 481 U.S. 1023 2 (1987); Bashor v. Risley, 730 F.2d 1228, 1234 (9th Cir.), cert. denied, 469 U.S. 838 (1984). Counsel 3 may be appointed if the complexities of the case are such that denial of counsel would amount to a 4 denial of due process, and where the petitioner is a person of such limited education as to be 5 incapable of fairly presenting his claims. See Chaney, 801 F.2d at 1196; see also Hawkins v. 6 Bennett, 423 F.2d 948 (8th Cir. 1970). The petition on file in this action is well-written and 7 sufficiently clear in presenting the issues that petitioner wishes to bring. The issues in this case are 8 not complex. It does not appear that counsel is justified in this instance. The motion shall be denied. 9 10 11 12 13 14 15 IT IS THEREFORE ORDERED that the application to proceed in forma pauperis (ECF No. 1) is GRANTED. IT IS THEREFORE ORDERED that petitioner’s motion for the appointment of counsel (ECF No. 2) is DENIED. IT IS THEREFORE ORDERED that the clerk shall FILE and ELECTRONICALLY SERVE the petition (ECF No. 1-1) upon the respondents. IT IS FURTHER ORDERED that respondents shall have forty-five (45) days from entry of 16 this order within which to answer, or otherwise respond to, the petition. In their answer or other 17 response, respondents shall address all claims presented in the petition. Respondents shall raise all 18 potential affirmative defenses in the initial responsive pleading, including lack of exhaustion and 19 procedural default. Successive motions to dismiss will not be entertained. If an answer is filed, 20 respondents shall comply with the requirements of Rule 5 of the Rules Governing Proceedings in the 21 United States District Courts under 28 U.S.C. §2254. If an answer is filed, petitioner shall have 22 forty-five (45) days from the date of service of the answer to file a reply. 23 IT IS FURTHER ORDERED that any state court record exhibits filed by respondents shall 24 be filed with a separate index of exhibits identifying the exhibits by number or letter. The hard copy 25 26 2 1 of all state court record exhibits shall be forwarded, for this case, to the staff attorneys in the Reno 2 division of the clerk of court. 3 IT IS FURTHER ORDERED that, henceforth, petitioner shall serve upon the attorney 4 general of the state of Nevada a copy of every pleading, motion, or other document he submits for 5 consideration by the court. Petitioner shall include with the original paper submitted for filing a 6 certificate stating the date that a true and correct copy of the document was mailed to the attorney 7 general. The court may disregard any paper that does not include a certificate of service. After 8 respondents appear in this action, petitioner shall make such service upon the particular deputy 9 attorney general assigned to the case. 10 Dated April 17, 2014. of April, 2014. this ______ day 11 12 UNITED STATES DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 3

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