Cepero v. William et al

Filing 4

ORDER Denying as moot 1 Motion/Application for Leave to Proceed in forma pauperis. IT IS FURTHER ORDERED that 2 Petitioner's Motion for Appointment of Counsel is DENIED. IT IS FURTHER ORDERED that the original petition is DISMISSED with out prejudice. IT IS FURTHER ORDERED that the Clerk SHALL SEND petitioner the form for filing a§ 2254 habeas corpus petition in this Court, together with instructions for filing the form. IT IS FURTHER ORDERED that petitioner shall have 30 days to file amended petition. Signed by Chief Judge Gloria M. Navarro on 10/21/2014. (Copies have been distributed pursuant to the NEF - cc: petitioner - EDS)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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BILLY CEPERO,
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Petitioner,

Case No. 2:14-cv-01395-GMN-PAL

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vs.

ORDER

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BRIAN WILLIAMS, 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 has filed a motion for leave to proceed in forma pauperis. (ECF No. 1).

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Petitioner has since paid the filing fee for this action. (ECF No. 3). Accordingly, the motion for

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leave to proceed in forma pauperis is denied as moot.

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Petitioner has filed a motion for the appointment of counsel. (ECF No. 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 counsel

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

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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). The

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issues in this case are not complex. It does not appear that counsel is justified in this instance. The

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motion for the appointment of counsel is denied.

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This Court has conducted a preliminary review of the petition pursuant to Rule 4 of the

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Rules Governing Section 2254 Cases in the United States District Courts. The Court must dismiss a

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petition “[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not

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entitled to relief in the district court.” Rule 4 of the Rules Governing Section 2254 Cases; see also

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Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990). The petition must be dismissed as conclusory.

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In Grounds 1-3, petitioner broadly alleges ineffective assistance of counsel. The petition lacks

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sufficient facts regarding how or why petitioner’s counsel was ineffective. Petitioner will be

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granted leave to file an amended petition that includes more detailed facts supporting his allegations

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of ineffective assistance of counsel.

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In filing an amended petition, petitioner is advised that an amended petition supercedes the

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original petition and therefore must be complete in itself. See Hal Roach Studios, Inc. v. Richard

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Feiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1990). “All causes of action alleged in an original

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complaint which are not alleged in an amended complaint are waived.” King v. Atiyeh, 814 F.2d

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565, 567 (9th Cir. 1987) (citation omitted). The amendment of a petition constitutes waiver of any

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omitted arguments or claims from previous versions of the petition. See Forsyth v. Humana, Inc.,

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114 F.3d 1467, 1474 (9th Cir. 1997). Therefore, the amended petition must contain all grounds for

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relief and factual allegations that petitioner wishes to pursue in this action. Moreover, the amended

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petition must be filed on the Court’s approved habeas corpus form and must be entitled “First

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Amended Petition.”

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IT IS THEREFORE ORDERED that petitioner’s motion for leave to proceed in forma
pauperis (ECF No. 1) is DENIED AS MOOT.
IT IS FURTHER ORDERED that petitioner’s motion for the appointment of counsel (ECF
No. 2) is DENIED.

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IT IS FURTHER ORDERED that the original petition is dismissed as conclusory, without

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prejudice to petitioner filing an amended petition providing additional factual allegations supporting

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his claims of ineffective assistance of counsel.

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IT IS FURTHER ORDERED that the Clerk SHALL SEND petitioner the form for filing a
§ 2254 habeas corpus petition in this Court, together with instructions for filing the form.
IT IS FURTHER ORDERED that petitioner SHALL FILE, within thirty (30) days from

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the date of entry of this order, an amended petition. The amended petition must be filed on the

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Court’s approved habeas corpus form and must be entitled “First Amended Petition.”

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IT IS FURTHER ORDERED that if petitioner fails to file an amended petition within
thirty (30) days, this action will be dismissed.
DATED this 21st day of October, 2014.

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Gloria M. Navarro, Chief Judge
United States District Court

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