Talley v. Nevens et al

Filing 11

ORDER that the Clerk shall ELECTRONICALLY SERVE the petition (ECF Nos. 1, 1-1) on the respondents, and shall add Adam Paul Laxalt as counsel for respondents. FURTHER ORDERED that respondents shall file a response to the petition, including potential ly by motion to dismiss, within ninety (90) days of service of the petition. FURTHER ORDERED that petitioner shall have forty-five (45) days from service of the answer, motion to dismiss, or other response to file a reply or opposition. FURTHER ORDE RED that petitioner's application to proceed in forma pauperis (ECF No. 3 ) is DENIED as moot. FURTHER ORDERED that petitioner's motion for appointment of counsel and motion for discovery (docketed as two motions at ECF Nos. 2 and 8 ); two motions for evidentiary hearing (ECF Nos. 4 and 9 ); and motion to compel (ECF No. 5 ) are all DENIED without prejudice. Signed by Judge Andrew P. Gordon on 10/6/16. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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MAURICE DANIEL JAMES TALLEY,

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Case No. 2:16-cv-00957-APG-VCF

Petitioner,

ORDER

v.
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D.W. NEVENS, et al.,
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Respondents.
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Before the court is a pro se petition for writ of habeas corpus pursuant to 28

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U.S.C. § 2254, submitted by Maurice Daniel James Talley, a Nevada state prisoner

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(ECF Nos. 1, 1-1). He has paid the filing fee (see ECF No. 1-2), and therefore, his

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application to proceed in forma pauperis (ECF No. 3) shall be denied as moot. The

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court has reviewed the petition pursuant to Habeas Rule 4, and it shall be docketed and

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served on respondents.

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A petition for federal habeas corpus should include all claims for relief of which

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petitioner is aware. If petitioner fails to include such a claim in his petition, he may be

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forever barred from seeking federal habeas relief upon that claim.

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§2254(b) (successive petitions). If petitioner is aware of any claim not included in his

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petition, he should notify the court of that as soon as possible, perhaps by means of a

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motion to amend his petition to add the claim.

See 28 U.S.C.

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Petitioner has also filed a motion for appointment of counsel and for discovery

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(docketed as two motions at ECF Nos. 2 and 8). There is no constitutional right to

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appointed counsel for a federal habeas corpus proceeding. Pennsylvania v. Finley, 481
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U.S. 551, 555 (1987); Bonin v. Vasquez, 999 F.2d 425, 428 (9th Cir.1993).

The

decision to appoint counsel is generally discretionary. Chaney v. Lewis, 801 F.2d 1191,
1196 (9th Cir.1986), cert. denied, 481 U.S. 1023 (1987); Bashor v. Risley, 730 F.2d
1228, 1234 (9th Cir.), cert. denied, 469 U.S. 838 (1984). However, counsel must be
appointed if the complexities of the case are such that denial of counsel would amount
to a denial of due process, and where the petitioner is a person of such limited
education as to be incapable of fairly presenting his claims. See Chaney, 801 F.2d at
1196; see also Hawkins v. Bennett, 423 F.2d 948 (8th Cir.1970). Here, Talley’s petition
appears sufficiently clear in presenting the issues that he wishes to raise, and the legal
issues are not particularly complex. Therefore, counsel is not justified.
Further, Talley’s motion for discovery shall be denied without prejudice at this
time. Rule 5 of the Rules Governing § 2254 Cases directs that respondents shall attach
the relevant state-court records to their responsive pleading. Talley may file a motion
for discovery if respondents fail to comply with Rule 5. Talley also filed a motion for
evidentiary hearing on July 5, 2016 (ECF No. 4), and he filed a duplicate motion on
August 15, 2016 (ECF No. 9). For the same reason, Talley’s motions for an evidentiary
hearing, as well as his motion to compel (ECF No. 5) are all denied without prejudice.
IT IS THEREFORE ORDERED that the Clerk shall ELECTRONICALLY SERVE
the petition (ECF Nos. 1, 1-1) on the respondents.
IT IS FURTHER ORDERED that the Clerk shall add Adam Paul Laxalt, Nevada
Attorney General, as counsel for respondents.
IT IS FURTHER ORDERED that respondents shall file a response to the petition,
including potentially by motion to dismiss, within ninety (90) days of service of the
petition, with any requests for relief by petitioner by motion otherwise being subject to
the normal briefing schedule under the local rules. Any response filed shall comply with
the remaining provisions below, which are entered pursuant to Habeas Rule 5.

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IT IS FURTHER ORDERED that any procedural defenses raised by respondents
in this case shall be raised together in a single consolidated motion to dismiss. In other
words, the court does not wish to address any procedural defenses raised herein either
in seriatum fashion in multiple successive motions to dismiss or embedded in the
answer. Procedural defenses omitted from such motion to dismiss will be subject to
potential waiver. Respondents shall not file a response in this case that consolidates
their procedural defenses, if any, with their response on the merits, except pursuant to
28 U.S.C. § 2254(b)(2) as to any unexhausted claims clearly lacking merit.

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respondents do seek dismissal of unexhausted claims under § 2254(b)(2): (a) they shall
do so within the single motion to dismiss not in the answer; and (b) they shall
specifically direct their argument to the standard for dismissal under § 2254(b)(2) set
forth in Cassett v. Stewart, 406 F.3d 614, 623-24 (9th Cir. 2005).

In short, no

procedural defenses, including exhaustion, shall be included with the merits in an
answer.

All procedural defenses, including exhaustion, instead must be raised by

motion to dismiss.
IT IS FURTHER ORDERED that, in any answer filed on the merits, respondents
shall specifically cite to and address the applicable state court written decision and state
court record materials, if any, regarding each claim within the response as to that claim.
IT IS FURTHER ORDERED that petitioner shall have forty-five (45) days from
service of the answer, motion to dismiss, or other response to file a reply or opposition,
with any other requests for relief by respondents by motion otherwise being subject to
the normal briefing schedule under the local rules.
IT IS FURTHER ORDERED that any additional state court record exhibits filed
herein by either petitioner or respondents shall be filed with a separate index of exhibits
identifying the exhibits by number. The CM/ECF attachments that are filed further shall
be identified by the number of the exhibit in the attachment.

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IT IS FURTHER ORDERED that any additional state court record exhibits filed
herein by either petitioner or respondents shall be filed with a separate index of exhibits
identifying the exhibits by number. The CM/ECF attachments that are filed further shall
be identified by the number or numbers of the exhibits in the attachment. The hard
copy of any additional state court record exhibits shall be forwarded – for this case – to
the Clerk’s Office, 400 S. Virginia St., Reno, NV, 89501 and directed to “Staff Attorney.”
IT IS FURTHER ORDERED that petitioner’s application to proceed in forma
pauperis (ECF No. 3) is DENIED as moot.
IT IS FURTHER ORDERED that petitioner’s motion for appointment of counsel
and motion for discovery (docketed as two motions at ECF Nos. 2 and 8); two motions
for evidentiary hearing (ECF Nos. 4 and 9); and motion to compel (ECF No. 5) are all
DENIED without prejudice.

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DATED: 6 October 2016.
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ANDREW P. GORDON
UNITED STATES DISTRICT JUDGE

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