Hammons v. Williams et al

Filing 6

ORDER Granting 1 Application for Leave to Proceed in forma pauperis. The Clerk shall file and Electronically Serve the petition. Respondents shall file a response to the petition within 90 days. Petitioner shall have 30 days from servic e of the response to file a reply. Denying without prejudice 2 Motion for evidentiary hearing. Denying 3 Motion to Appoint Counsel. Granting 5 Motion to extend copywork limit. Signed by Judge Jennifer A. Dorsey on 1/16/2015. (Copies have been distributed pursuant to the NEF - SLR)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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BENNY HAMMONS,
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Petitioner,

Case No. 2:14-cv-01902-JAD-GWF

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vs.

ORDER

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BRIAN WILLIAMS, et al.,
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Respondents.
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Petitioner Benny Hammons, a Nevada prisoner, has submitted an application to proceed in
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forma pauperis (Doc. 1) and a petition for a writ of habeas corpus under to 28 U.S.C. § 2254 (Doc. 116
1). The court has reviewed the petition pursuant to Habeas Rule 4, and the petition shall be docketed
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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 a known claim in his petition, he may be forever barred from
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seeking federal habeas relief upon that claim. See 28 U.S.C. §2254(b) (successive petitions). If
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petitioner is aware of any claim not included in his petition, he should notify the court of that as soon
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as possible, perhaps by means of a motion to amend his petition to add the claim
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Also before the court is petitioner’s motion for the appointment of counsel (Doc. 1-3). There
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is no constitutional right to appointed counsel for a federal habeas corpus proceeding. Pennsylvania
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v. 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 case is so complexities that denial of

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counsel would amount to a denial of due process or the petitioner is a person of education so limited

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he is incapable of fairly presenting his claims. See Chaney, 801 F.2d at 1196; see also Hawkins v.

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

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presenting the issues that petitioner wishes to raise, and the legal issues do not appear to be particularly

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complex; therefore, counsel is not justified. Petitioner’s motion is denied.

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Petitioner has also filed a motion to extend prison copywork limit (Doc. 5). A court may order

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a prison to provide limited photocopying when it is necessary for an inmate to provide copies to the

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court and other parties. See, e.g., Allen v. Clark County Detention Center, 2011 WL 886343, at * 2

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(D. Nev. March 11, 2011). As petitioner will have an opportunity to respond to or oppose

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respondents’ response to his petition, petitioner’s motion is granted. However, petitioner asks for $700

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in copywork, with no explanation whatsoever for this amount, and this the court will not grant such a

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large sum. Petitioner shall be granted an additional $50 in credit for copywork to be used in this habeas

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proceeding only.

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Finally, petitioner wrote on the § 2254 “evidentiary hearing requested,” and the Clerk thus

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docketed his submission both as a § 2254 petition and a motion for evidentiary hearing (Docs. 1-1, 2).

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It is unclear whether petitioner intended to bring a motion for hearing. In any event, he sets forth no

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supporting argument whatsoever. Accordingly, the motion for evidentiary hearing is denied without

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prejudice.

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IT THEREFORE IS ORDERED that petitioner’s application to proceed in forma pauperis
(Doc. 1) is GRANTED.
IT FURTHER IS ORDERED that the Clerk shall file and ELECTRONICALLY SERVE
the petition (Doc. 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 90 days of service of the petition, with any requests for relief

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by petitioner by motion otherwise being subject to the normal briefing schedule under the local rules.

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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.

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All 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 30 days from service of the answer,

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

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respondents by motion otherwise being subject to the normal briefing schedule under the local 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 evidentiary hearing (Doc. 2) is
DENIED without prejudice.
IT FURTHER IS ORDERED that petitioner’s motion for appointment of counsel (Doc. 3) is
DENIED.

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IT FURTHER IS ORDERED that petitioner’s motion to extend copywork limit (Doc. 5) is
GRANTED, but is limited to $50 for copies to be used in this habeas proceeding only.
Dated: January 16, 2015.

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___________________________________

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UNITED STATES DISTRICT JUDGE

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