West v. Williams et al
Filing
29
ORDER granting 28 Motion to Extend Time ; ORDER granting 21 Motion for Leave to File Excess Pages; ORDER denying 22 Motion for Appointment of Counsel ; ORDER denying 23 Motion for District Judge to Reconsider Order; Petitioner shall have sixty days from the date this order is entered to file a reply. Signed by Chief Judge Gloria M. Navarro on 2/9/2018. (Copies have been distributed pursuant to the NEF - JM)
1
2
3
4
UNITED STATES DISTRICT COURT
5
DISTRICT OF NEVADA
6
7
8
9
10
11
12
HYRUM JOSEPH WEST,
)
)
Petitioner,
)
)
vs.
)
)
BRIAN WILLIAMS, et al.,
)
)
Respondents.
)
____________________________________/
2:15-cv-02462-GMN-NJK
ORDER
13
14
This is a habeas corpus proceeding under 28 U.S.C. § 2254 brought by Hyrum Joseph West, a
15
Nevada prisoner. Pending before the court are West’s motion for reconsideration of this court’s
16
dismissal of Grounds 1 and 2 (ECF No. 23),1 his second motion for appointment of counsel (ECF
17
No. 22), his motion for leave to file excess pages (ECF No. 21), and his motion for extension of time
18
(ECF No. 28). For the reasons that follow, the first two motions shall be denied. The motions for
19
leave to file excess pages and for extension of time shall granted.
Motion for reconsideration
20
21
West asks this court to reconsider its order of March 1, 2017 (ECF No. 20), which dismissed
22
Grounds 1 and 2 of West’s petition for writ of habeas corpus (ECF No. 9) except for claims
23
premised on ineffective assistance of appellate counsel. Those claims were dismissed by the Nevada
24
25
26
1
West cites Fed. R. App. Pro. P. 40 as authority for his motion. While the rule does not apply
to proceedings in the United States district courts (see Fed. R. App. P. 1(a)), this court construes the
motion as a motion for reconsideration.
1
Supreme Court as successive under Nev. Rev. Stat. § 34.810(1)(a). This court concluded that the
2
claims are procedurally defaulted in this court. In addition, this court concluded that the claims were
3
barred by Tollett v. Henderson, 411 U.S. 258, 267 (1973), and/or not cognizable in a federal habeas
4
proceeding.
5
With his motion, West does not raise any arguments that he did not or could not have raised
6
in opposing respondents’ motion to dismiss. Thus, the motion is denied. See Backlund v. Barnhart,
7
778 F.2d 1386, 1388 (9th Cir. 1985) (holding that reconsideration was properly denied where movant
8
presented no arguments that had not already been raised in opposition to summary judgment); Kona
9
Enters., Inc. v.. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000) (holding that motion for
10
reconsideration may not be used to raise arguments that could reasonably have been raised earlier in
11
the litigation).
12
Motion for appointment of counsel
13
Pursuant to 18 U.S.C. §3006A(a)(2)(B), the district court has discretion to appoint counsel
14
when it determines that the "interests of justice" require representation. There is no constitutional
15
right to appointed counsel for a federal habeas corpus proceeding. Pennsylvania v. Finley, 481 U.S.
16
551, 555(1987); Bonin v. Vasquez, 999 F.2d 425, 428 (9th Cir. 1993). The decision to appoint
17
counsel is generally discretionary. Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986); Bashor v.
18
Risley, 730 F.2d 1228, 1234 (9th Cir. 1984). However, counsel must be appointed if the
19
complexities of the case are such that denial of counsel would amount to a denial of due process, and
20
where the petitioner is a person of such limited education as to be incapable of fairly presenting his
21
claims. See Chaney, 801 F.2d at1196; see also Hawkins v. Bennett, 423 F.2d 948 (8th Cir. 1970).
22
The petition on file in this action is sufficiently clear in presenting West’s claims. Also, the
23
issues in this case are not particularly complex. It does not appear that counsel is justified in this
24
instance. Moreover, this court rejects West’s contention that it does not give due consideration to
25
documents filed by pro se litigants. West's motion for appointment of counsel is denied.
26
2
1
2
3
IT THEREFORE ORDERED that petitioner’s second motion for appointment of counsel
(ECF No. 22) and motion for reconsideration (ECF No. 23) are DENIED.
IT IS FURTHER ORDERED that petitioner’s motion for leave to file excess pages (ECF
4
No. 21) and motion for extension of time (ECF No. 28) are GRANTED. Petitioner shall have sixty
5
(60) days from the date this order is entered to file a reply.
6
9
Dated this ______ day of February, 2018.
7
8
UNITED STATES DISTRICT JUDGE
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
3
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?