Torres v. Neven et al

Filing 7

ORDER. IT IS ORDERED that 1 the application to proceed in forma pauperis is GRANTED. IT IS FURTHER ORDERED that the Clerk shall FILE and ELECTRONICALLY SERVE the petition upon the respondents. IT IS FURTHER ORDERED that 2 petitioner 9;s motion for the appointment of counsel is DENIED. IT IS FURTHER ORDERED that 3 petitioner's motion for an evidentiary hearing is DENIED. IT IS FURTHER ORDERED that the Clerk of Court SHALL ADD attorney General Adam Paul Laxalt t o the CM/ECF docket sheet as counsel for respondents. IT IS FURTHER ORDERED that respondents shall have forty-five (45) days from the entry of this order within which to answer, or otherwise respond to, the petition. In their answer or other response, respondents shall address all claims presented in the petition. Signed by Chief Judge Gloria M. Navarro on 9/15/16. (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,

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vs.

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Case No. 2:16-cv-00443-GMN-CWH

DWIGHT NEVEN, et al.,

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ORDER

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
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by a Nevada state prisoner.
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Petitioner has filed a motion to proceed in forma pauperis. (ECF No. 1). Based on the
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information regarding petitioner's financial status, the Court finds that the motion to proceed in
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forma pauperis should be granted. The petition shall now be filed and served on respondents.
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Petitioner seeks the appointment of counsel. (ECF No. 2). Pursuant to 18 U.S.C.
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§ 3006A(2)(B), the district court has discretion to appoint counsel when it determines that the
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“interests of justice” require representation in a habeas corpus case. Petitioner has no constitutional
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right to appointed counsel in a federal habeas corpus proceeding. Pennsylvania v. Finley, 481 U.S.
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551, 555 (1987); Bonin v. Vasquez, 999 F.2d 425, 428 (9th Cir. 1993). The decision to appoint
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counsel is within the Court’s discretion. 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,

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469 U.S. 838 (1984). The petition on file in this action is sufficiently clear in presenting the issues

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that petitioner wishes to bring. The issues in this case are not complex. Counsel is not justified in

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this instance and petitioner’s motion is denied.

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Petitioner has filed a motion for an evidentiary hearing. (ECF No. 3). Petitioner has failed

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to meet the burden required of him by 28 U.S.C. § 2254(e). Petitioner’s motion for an evidentiary

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hearing is denied.

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IT IS THEREFORE ORDERED that the application to proceed in forma pauperis (ECF
No. 1) is GRANTED.
IT IS FURTHER ORDERED that the Clerk shall FILE and ELECTRONICALLY
SERVE the petition upon the respondents.
IT IS FURTHER ORDERED that petitioner’s motion for the appointment of counsel (ECF
No. 2) is DENIED.
IT IS FURTHER ORDERED that petitioner’s motion for an evidentiary hearing (ECF No.
3) is DENIED.
IT IS FURTHER ORDERED that the Clerk of Court SHALL ADD attorney General
Adam Paul Laxalt to the CM/ECF docket sheet as counsel for respondents.
IT IS FURTHER ORDERED that respondents shall have forty-five (45) days from the

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entry of this order within which to answer, or otherwise respond to, the petition. In their answer or

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other response, respondents shall address all claims presented in the petition. Respondents shall

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raise all potential affirmative defenses in the initial responsive pleading, including lack of

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exhaustion and procedural default. Successive motions to dismiss will not be entertained. If an

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answer is filed, respondents shall comply with the requirements of Rule 5 of the Rules Governing

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Proceedings in the United States District Courts under 28 U.S.C. §2254. If an answer is filed,

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petitioner shall have forty-five (45) days from the date of service of the answer to file a reply.

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IT IS FURTHER ORDERED that any state court record exhibits filed by respondents shall

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be filed with a separate index of exhibits identifying the exhibits by number or letter. The hard copy

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of all state court record exhibits shall be forwarded, for this case, to the staff attorneys in the Reno

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Division of the Clerk of Court.

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Dated this ______ day of September, 2016.

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Gloria M. Navarro, Chief Judge
United States District Court

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