McCurdy v. Williams et al

Filing 7

ORDERED that the clerk of the court shall file the petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. IT IS FURTHER ORDERED that the clerk of the court shall send petitioner a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 form with instructions. IT IS FURTHER ORDERED that petitioner shall clearly title the amended petition as such by placing the word AMENDED immediately above Petition for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 on page 1 in the caption, and petitioner shall place the docket number, 2:14-cv-00713-JCM-GWF, above the word AMENDED. Signed by Judge James C. Mahan on 9/26/2014. (Copies have been distributed pursuant to the NEF - DKJ)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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MARC MCCURDY,

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Petitioner,

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vs.

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BRIAN WILLIAMS, et al.,

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Case No. 2:14-cv-00713-JCM-GWF

Respondents.

ORDER

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Currently before the court is a motion for a stay (#6). Petitioner asks the court to stay the

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action while he pursues a claim of a violation of the Fourth Amendment through a state habeas

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corpus petition. The court may stay a mixed petition, containing grounds both exhausted and

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unexhausted in the state courts, if petitioner shows that he has “good cause for his failure to exhaust,

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his unexhausted claims are potentially meritorious, and there is no indication that the petitioner

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engaged in intentionally dilatory litigation tactics.” Rhines v. Weber, 544 U.S. 269, 278 (2005). A

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stay is not appropriate at this time. The petition for a writ of habeas corpus does not contain this

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Fourth Amendment claim, and the motion (#6) does not contain any description of the claim beyond

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a citation to a decision of the Supreme Court of the United States. The court has no means of

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determining whether the claim has potential merit. If petitioner wishes to present a Fourth

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Amendment claim to this court, then he will need to file an amended petition that contains the

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claim. The court makes no comment on whether the claim would be subject to any procedural

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defenses. He also will need to re-allege in the amended petition all the other counts in the original

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petition, or they will be waived. King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).

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Petitioner also has submitted a motion for appointment of counsel (#2). Whenever the court

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determines that the interests of justice so require, counsel may be appointed to any financially

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eligible person who is seeking habeas corpus relief. 18 U.S.C. § 3006A(a)(2)(B). “[T]he district

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court must evaluate the likelihood of success on the merits as well as the ability of the petitioner to

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articulate his claims pro se in light of the complexity of the legal issues involved.” Weygandt v.

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Look, 718 F.2d 952 (9th Cir. 1983). There is no constitutional right to counsel in federal habeas

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proceedings. McCleskey v. Zant, 499 U.S. 467, 495 (1991). The factors to consider are not

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separate from the underlying claims, but are intrinsically enmeshed with them. Weygandt, 718 F.2d

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at 954. After reviewing the petition, the court concludes that appointment of counsel is not

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warranted.
IT IS THEREFORE ORDERED that the clerk of the court shall file the petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254.
IT IS FURTHER ORDERED that the clerk of the court shall send petitioner a petition for a

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writ of habeas corpus pursuant to 28 U.S.C. § 2254 form with instructions. Petitioner shall have

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thirty (30) days from the date that this order is entered in which to file an amended petition to

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correct the noted deficiencies. Neither the foregoing deadline nor any extension thereof signifies or

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will signify any implied finding of a basis for tolling during the time period established. Petitioner

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at all times remains responsible for calculating the running of the federal limitation period and

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timely asserting claims. If petitioner does not file an amended petition within the allotted time, then

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the action will proceed upon the original petition.

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IT IS FURTHER ORDERED that petitioner shall clearly title the amended petition as such

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by placing the word “AMENDED” immediately above “Petition for a Writ of Habeas Corpus

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Pursuant to 28 U.S.C. § 2254” on page 1 in the caption, and petitioner shall place the docket

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number, 2:14-cv-00713-JCM-GWF, above the word “AMENDED.”

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DATED: September 26, 2014.

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_________________________________
JAMES C. MAHAN
United States District Judge

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