Davidson v. Neven et al

Filing 4

ORDER Denying 2 Motion to Appoint Counsel. Denying as moot 3 Application for Leave to Proceed in forma pauperis. Respondents have 45 days to file a responsive pleading to 1 Petition. Signed by Judge Jennifer A. Dorsey on 7/24/2014. (Copies have been distributed pursuant to the NEF - SLR)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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LEE DAVIDSON,
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Petitioner,

Case No. 2:14-cv-00432-JAD-PAL

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vs.

ORDER

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DWIGHT NEVEN, et al.,
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Respondents.
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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, by a Nevada state prisoner.

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Petitioner paid the $5.00 filing fee for this action. (Doc. 1-1). The Court has reviewed the

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habeas petition, and it shall be served on respondents. Respondents shall file a response to the

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petition, as set forth at the conclusion of this order.
Petitioner has filed a motion to proceed in forma pauperis. (Doc. 3). Because petitioner has

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already paid the filing fee for this action, his motion to proceed in forma pauperis is denied as

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moot.

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Petitioner has filed a motion for the appointment of counsel. (Doc. 2). Pursuant to 18

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U.S.C. § 3006(a)(2)(B), the district court has discretion to appoint counsel when it determines that

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the “interests of justice” require representation. There is no constitutional right to appointed

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counsel for a federal habeas corpus proceeding. Pennsylvania v. Finley, 481 U.S. 551, 555 (1987);

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Bonin v. 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). In this case, the petition on file 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. Counsel is not justified in this instance. Petitioner’s motion for the appointment

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of counsel is denied.
IT IS THEREFORE ORDERED that petitioner’s motion to proceed in forma pauperis
(Doc. 3) is DENIED AS MOOT.
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 ELECTRONICALLY SERVE the
petition (Doc. 1) 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

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the 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

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

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

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the Reno Division of the Clerk of Court.
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IT IS FURTHER ORDERED that from this point forward, petitioner shall serve upon the

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

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

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

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

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After respondents appear in this action, petitioner shall make such service upon the particular

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Deputy Attorney General assigned to the case.

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Dated: July 24, 2014.
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UNITED STATES DISTRICT JUDGE
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