McNeal v. Williams et al

Filing 29

ORDER. IT IS HEREBY ORDERED that 18 McNeal's motion for appointment ofcounsel is DENIED, and 27 his motion for a time extension is GRANTED. IT IS FURTHER ORDERED that 25 respondent's motion for leave to file an exhibit under seal is GRANTED. Signed by Judge Jennifer A. Dorsey on 2/5/2018. (Copies have been distributed pursuant to the NEF - ADR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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Marcus Sharif McNeal,

2:16-cv-01618-JAD-GWF

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Petitioner

Order

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v.

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State of Nevada, et al.,

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[ECF Nos. 18, 25, 27]

Respondents

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Pro se petitioner Marcus McNeal moves for appointment of counsel to assist him with his

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petition for a writ of habeas corpus,1 and he asks for more time to respond to the respondents’

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motion to dismiss.2 Respondents have filed a motion for leave to file an exhibit under seal.3 I

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now address all pending motions.

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Discussion
A.

Motion for appointment of counsel

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I first note that McNeal had until January 17, 2018, to file a reply to respondents’

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opposition to his motion for appointed counsel.4 McNeal did not reply, so I consider the matter

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fully briefed. There is no constitutional right to appointed counsel for a federal habeas corpus

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proceeding.5 The decision to appoint counsel is generally discretionary.6 But counsel must be

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ECF No. 18.

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ECF No. 27.

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ECF No. 25.

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ECF No. 20.

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Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); Bonin v. Vasquez, 999 F.2d 425, 428 (9th
Cir. 1993).
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Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986); Bashor v. Risley, 730 F.2d 1228, 1234
(9th Cir. 1984).

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appointed to avoid denying due process if a case is so complex or the petitioner is so uneducated

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that he is incapable of fairly presenting his claims.7

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The issues in this case are not so complex that they require appointment of counsel, and

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as this is a renewed motion for appointment of counsel, I have previously found that McNeal

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appears capable of adequately presenting his claims.8 McNeal argues that he has “extremely

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limited access” to the prison law library and that the library has no books, only computers. He

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acknowledges, however, that there are six computers available for legal research. McNeal also

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argues that he needs an attorney to help him conduct discovery. But federal habeas review is

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generally limited to the record that was before the state court that adjudicated the claim on the

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merits.

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McNeal has failed to show that he is incapable of representing himself, especially in light

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of the presentation of his claims in the petition and the motion practice throughout this case. I

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therefore find that the interests of justice do not require me to appoint counsel for McNeal, and I

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deny his motion.

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B.

Motion for an extension of time

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McNeal also requests 60 more days to respond to respondents’ motion to dismiss.9 This

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is McNeal’s first request for an extension, and I find that it is made in good faith and not solely

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for the purpose of delay. So I grant the motion.

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C.

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Motion for leave to file an exhibit under seal
Respondents move for leave to file Mcneal’s pre-sentence investigation report under

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seal.10 Good cause appearing, the motion is granted, and exhibit 32 will be considered properly

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filed under seal. The report is a confidential document, and I find that a compelling need to

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See Chaney, 801 F.2d at 1196; see also Hawkins v. Bennett, 423 F.2d 948 (8th Cir. 1970).

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ECF No. 5.

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ECF No. 27.

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ECF No. 25.
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protect sensitive information pertaining to the victim and McNeal outweighs the public interest

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in open access to court records.11

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Conclusion

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Accordingly, IT IS HEREBY ORDERED that McNeal’s motion for appointment of

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counsel [ECF No. 18] is DENIED, and his motion for a time extension [ECF No. 27] is

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GRANTED.

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IT IS FURTHER ORDERED that respondent’s motion for leave to file an exhibit under

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seal [ECF No. 25] is GRANTED.

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DATED: February 5, 2018.

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_______________________________
________________ _____
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U.S. District Judge Jennifer A. Dorsey
.S. District Judge Jennifer
t ic
ni
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Kamakama v. City and County of Honolulu, 447 F.3d 1172 (9th Cir. 2006).
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