McNeal v. Williams et al

Filing 5

ORDER. IT IS HEREBY ORDERED that 1 McNeal's application to proceed in formapauperis is GRANTED. IT IS FURTHER ORDERED that 2 McNeal's motion for appointment of counsel and 4 motion for stay are DENIED. IT IS FURTHER ORDERED that the Clerk of Court is directed to FILE and electronically SERVE the petition on respondents. IT IS FURTHER ORDERED that respondents must respond to the petition by 4/11/17. Signed by Judge Jennifer A. Dorsey on 3/1/17. (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 S. McNeal,
2:16-cv-01618-JAD-GWF

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Petitioner

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v.

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Brian Williams, et al.,

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Order Granting Application to Proceed
in forma pauperis, Denying Motion for
Appointment of Counsel, and Denying
Motion for Stay

Respondents
[ECF Nos. 1, 2, 4]

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Nevada state-prison inmate Marcus S. McNeal has filed a § 2254 petition along with a

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motion to proceed in forma pauperis, a motion for appointment of counsel, and a motion to stay

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these proceedings. I grant the IFP application, deny the motion for appointment of counsel, and deny

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the motion to stay.

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Discussion

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Having reviewed the IFP application and supporting documentation, I find that McNeal is

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unable to pay the filing fee, so I grant the application. As to the motion for appointment of counsel,

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there is no constitutional right to appointed counsel in federal habeas proceedings,1 but the district

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court may appoint counsel when it determines that the “interests of justice” require representation.2

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McNeal’s petition is sufficiently clear in presenting the issues that he wishes to bring, and these

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issues are not particularly complex. I therefore find that the interests of justice do not require

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representation, and I decline to exercise my discretion to appoint counsel.

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McNeal has also filed a two-page form motion to stay these proceedings, in which he

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requests that the court construe the petition as a “protective petition” and stay this case until his state-

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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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18 U.S.C. § 3006A(2)(B).
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court matters are resolved. It appears that McNeal’s state-court proceedings have concluded,3 so a

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protective petitition is not appropriate, and McNeal has not otherwise shown that good cause exists

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for a stay. I therefore deny without prejudice McNeal’s motion to stay.

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Conclusion
Accordingly, IT IS HEREBY ORDERED that McNeal’s application to proceed in forma

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pauperis [ECF No. 1] is GRANTED.

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IT IS FURTHER ORDERED that McNeal’s motion for appointment of counsel [ECF No. 2]
and motion for stay [ECF No. 4] are DENIED.

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IT IS FURTHER ORDERED that the Clerk of Court is directed to FILE and electronically
SERVE the petition on respondents.

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IT IS FURTHER ORDERED that respondents must respond to the petition by April 11,

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2017. In their response, respondents must address all claims presented in the petition and must raise

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all potential affirmative defenses, including lack of exhaustion and procedural default. Successive

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motions to dismiss will not be entertained. Any state-court record exhibits filed by respondents

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

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copy of all state-court record exhibits must be forwarded to the staff attorneys in the Reno Division

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of the Clerk of Court. If an answer is filed, respondents must comply with the requirements of Rule

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5 of the Rules Governing Proceedings in the United States District Courts under 28 U.S.C. §2254. If

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an answer is filed, McNeal will have 45 days from service of the answer to file a reply.

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Dated this 1st day of March, 2017.

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_________________________________
Jennifer A. Dorsey
United States District Judge

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McNeal’s direct appeal concluded on May 13, 2014, and his appeal from the denial of his postconviction habeas petition concluded on March 16, 2016. This information was obtained from the
online Nevada Appellate Case Management System.
http://caseinfo.nvsupremecourt.us/public/publicActorSearch.do (last visited Feb. 24, 2017).
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