Tatum v. Neven et al

Filing 6

ORDER that 3 Motion to Correct Dates is GRANTED as set forth in this order. IT FURTHER IS ORDERED that the Clerk shall file and ELECTRONICALLY SERVE the petition (ECF#1-1) on the respondents. IT FURTHER IS ORDERED that respondents shall file a response to the petition, including potentially by motion to dismiss, within ninety (90) days. IT FURTHER IS ORDERED that 2 Motion to Appoint Counsel is DENIED. Signed by Judge James C. Mahan on 12/31/14. (Copies have been distributed pursuant to the NEF - TR)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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SYLVESTER SANFORD TATUM,
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Petitioner,

Case No. 2:14-cv-01280-JCM-GWF

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vs.

ORDER

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D.W. NEVEN, et al.,
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Respondents.
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Sylvester Sanford Tatum, has submitted a petition for a writ of habeas corpus pursuant to 28
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U.S.C. § 2254 (ECF #1-1) and has now paid the filing fee (see ECF #5). The court has reviewed the
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petition pursuant to Habeas Rule 4, and the petition shall be docketed and served upon the respondents.
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A petition for federal habeas corpus should include all claims for relief of which petitioner is
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aware. If petitioner fails to include such a claim in his petition, he may be forever barred from seeking
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federal habeas relief upon that claim. See 28 U.S.C. §2254(b) (successive petitions). If petitioner is
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aware of any claim not included in his petition, he should notify the court of that as soon as possible,
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perhaps by means of a motion to amend his petition to add the claim.
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Petitioner has filed a motion to correct dates on the face of the petition (ECF #3), in which he
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indicates that on page one of his petition he included two incorrect dates. First, section no. 2 should
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reflect that the judgment of conviction was entered on November 1, 2010, and the amended judgment
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of conviction was entered on August 15, 2012. Id., exs. 3, 4, 5. Second, section no. 4, date when

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postconviction appeal was decided, should read June 12, 2014, and remittitur issued July 22, 2014. Id.,

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exs. 1, 2. Good cause appearing, petitioner’s motion is granted, and these changes are noted.

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Also before the court is petitioner’s motion for the appointment of counsel (ECF #2). There is

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no constitutional right to appointed counsel for a federal habeas corpus proceeding. Pennsylvania v.

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Finley, 481 U.S. 551, 555 (1987); Bonin v. Vasquez, 999 F.2d 425, 428 (9th Cir.1993). The decision

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to appoint counsel is generally discretionary. Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir.1986),

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cert. denied, 481 U.S. 1023 (1987); Bashor v. Risley, 730 F.2d 1228, 1234 (9th Cir.), cert. denied, 469

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U.S. 838 (1984). However, counsel must be appointed if the complexities of the case are such that

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

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

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also Hawkins v. Bennett, 423 F.2d 948 (8th Cir.1970). The petition on file in this action appears

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sufficiently clear in presenting the issues that petitioner wishes to raise, and the legal issues do not

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appear to be particularly complex; therefore, counsel is not justified. Petitioner’s motion is denied.

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IT THEREFORE IS ORDERED that petitioner’s motion to correct dates (ECF #3) is
GRANTED as set forth in this order.
IT FURTHER IS ORDERED that the Clerk shall file and ELECTRONICALLY SERVE
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the petition (ECF #1-1) on the respondents.

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IT FURTHER IS ORDERED that respondents shall file a response to the petition, including

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potentially by motion to dismiss, within ninety (90) days of service of the petition, with any requests

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for relief by petitioner by motion otherwise being subject to the normal briefing schedule under the local

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rules. Any response filed shall comply with the remaining provisions below, which are entered

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pursuant to Habeas Rule 4.

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IT FURTHER IS ORDERED that any procedural defenses raised by respondents in this case

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shall be raised together in a single consolidated motion to dismiss. In other words, the court does not

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wish to address any procedural defenses raised herein either in seriatum fashion in multiple successive

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motions to dismiss or embedded in the answer. Procedural defenses omitted from such motion to

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dismiss will be subject to potential waiver. Respondents shall not file a response in this case that
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consolidates their procedural defenses, if any, with their response on the merits, except pursuant to 28

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U.S.C. § 2254(b)(2) as to any unexhausted claims clearly lacking merit. If respondents do seek

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dismissal of unexhausted claims under § 2254(b)(2): (a) they shall do so within the single motion to

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dismiss not in the answer; and (b) they shall specifically direct their argument to the standard for

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dismissal under § 2254(b)(2) set forth in Cassett v. Stewart, 406 F.3d 614, 623-24 (9th Cir. 2005). In

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short, no procedural defenses, including exhaustion, shall be included with the merits in an answer. All

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procedural defenses, including exhaustion, instead must be raised by motion to dismiss.

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IT FURTHER IS ORDERED that, in any answer filed on the merits, respondents shall

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specifically cite to and address the applicable state court written decision and state court record

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materials, if any, regarding each claim within the response as to that claim.

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IT FURTHER IS ORDERED that petitioner shall have thirty (30) days from service of the

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answer, motion to dismiss, or other response to file a reply or opposition, with any other requests for

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relief by respondents by motion otherwise being subject to the normal briefing schedule under the local

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rules.

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IT FURTHER IS ORDERED that any additional state court record exhibits filed herein by

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either petitioner or respondents shall be filed with a separate index of exhibits identifying the exhibits

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by number. The CM/ECF attachments that are filed further shall be identified by the number or

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numbers of the exhibits in the attachment. The hard copy of any additional state court record exhibits

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shall be forwarded – for this case – to the staff attorneys in Reno.

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IT FURTHER IS ORDERED that petitioner’s motion for appointment of counsel (ECF #2)
is DENIED.
December of 2014.
Dated, this ___ day 31,December, 2014.
___________________________________
UNITED STATES DISTRICT JUDGE

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