Torres v. Neven et al
Filing
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ORDER. IT IS ORDERED that 14 petitioner's second motion for appointment of counsel and 13 second motion for an evidentiary hearing both are DENIED. Signed by Chief Judge Gloria M. Navarro on 9/28/17. (Copies have been distributed pursuant to the NEF - ADR)
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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
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ANGEL TORRES,
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Petitioner,
2:16-cv-00443-GMN-CWH
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vs.
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ORDER
DWIGHT NEVEN, et al.,
Respondents.
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This habeas matter under 28 U.S.C. § 2254 comes before the Court on petitioner’s
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second motion (ECF No. 14) for appointment of counsel and second motion (ECF No. 13) for
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an evidentiary hearing.
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The Court reiterates its prior findings that the appointment of counsel is not warranted
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herein and that petitioner has failed to establish a basis for an evidentiary hearing. See ECF
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No. 7, at 1-2.
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The extensive argument presented in, inter alia, the current motions further confirms
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that petitioner has a more than adequate ability to articulate and present his position in this
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matter with the assistance and resources available to him.
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Petitioner maintains that appointment of counsel is necessary to obtain his sentencing
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transcripts. Respondents already have filed extensive state court record exhibits; they may
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file additional such exhibits with any answer filed;1 and the Court in all events can direct
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Respondents represent that they have requested “either the transcript or the JAVS recording of
TORRES’ sentencing hearing.” (ECF No. 16, at 2.)
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respondents to file any additional record exhibits, including transcripts, as are necessary to
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resolve the issues presented herein. In short, the Court does not need to appoint counsel for
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petitioner to ensure that sufficient state court record exhibits are on file.
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Petitioner further maintains that appointment of counsel is necessary for taking
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possible depositions, obtaining hospital records, and subpoenaing witnesses. Discovery is
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not allowed as a matter of course in federal habeas proceedings, and the Court has not
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ordered same as of this juncture. Further, on claims adjudicated on the merits by the state
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courts, federal court review in general is restricted to the record previously presented to the
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state court that adjudicated the claim on the merits. See Cullen v. Pinholster, 563 U.S. 170
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(2011). The Court has ordered no evidentiary hearing in this matter.
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In that latter vein, petitioner maintains that an evidentiary hearing is necessary on the
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merits of Grounds 1, 2, 4, 5, 9, 11 and 13. However, respondents currently are seeking
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dismissal of, inter alia, Grounds 1, 2, 4, 5, and 11, such that it has not been determined that
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the merits of these claims will be reached at this juncture. Moreover, again, as to claims
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adjudicated on the merits by the state courts, federal review generally is limited to the record
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before those courts at the time of the merits adjudication. Pinholster, supra.
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The motions therefore will be denied on the showing and argument made. The Court
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again finds that the interests of justice do not require the appointment of counsel under 18
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U.S.C. § 3006A and that an evidentiary hearing is not warranted herein.
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The Court will reach respondents’ pending motion to dismiss as promptly as its habeas
docket allows.
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IT THEREFORE IS ORDERED that petitioner’s second motion (ECF No. 14) for
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appointment of counsel and second motion (ECF No. 13) for an evidentiary hearing both are
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DENIED.
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DATED: September 28, 2017
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_________________________________
Gloria M. Navarro, Chief Judge
United States District Court
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