Sharpe v. Nevin et al

Filing 12

ORDER denying 11 Ex Parte Motion. Respondents shall file a Response within 60 days of this Order. Petitioner shall have 30 days from service of answer to file reply. Signed by Judge James C. Mahan on 12/19/16. (Copies have been distributed pursuant to the NEF, cc: Respondent with Writ - JM)

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1 2 3 4 5 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 6 7 8 PHILLIP SHARPE, 9 Petitioner, 2:16-cv-01841-JCM-VCF 10 vs. 11 ORDER 12 13 NEVIN, et al., Respondents. 14 15 This is a habeas corpus proceeding under 28 U.S.C. § 2254 brought by Phillip Sharpe, a Nevada 16 prisoner. On November 8, 2016, this court entered a screening order identifying defects in Sharpe’s 17 initial habeas petition and granting him leave to amend. ECF No. 8. On November 21, 2016, Sharpe 18 filed an amended petition. ECF No. 10. 19 The court has screened the amended petition and concludes that the respondents shall be served 20 with the amended petition and directed to respond to it. See Rule 4, Rules Governing § 2254 Cases in 21 the U.S. District Courts. 22 In addition, Sharpe has filed a motion for the appointment of counsel. ECF No. 11. Pursuant 23 to 18 U.S.C. §3006A(a)(2)(B), the district court has discretion to appoint counsel when it determines 24 that the “interests of justice” require representation. There is no constitutional right to appointed 25 counsel for a federal habeas corpus proceeding. Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); 26 Bonin v. Vasquez, 999 F.2d 425, 428 (9th Cir. 1993). The decision to appoint counsel is generally 27 discretionary. Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986); Bashor v. Risley, 730 F.2d 1228, 28 1234 (9th Cir. 1984). However, counsel must be appointed if the complexities of the case are such that 1 denial of counsel would amount to a denial of due process, and where the petitioner is a person of such 2 limited education as to be incapable of fairly presenting his claims. See Chaney, 801 F.2d at 1196; see 3 also Hawkins v. Bennett, 423 F.2d 948, 950 (8th Cir. 1970). The petition on file in this action is 4 sufficiently clear in presenting the issues that Sharpe wishes to bring. Also, the issues in this case are 5 not particularly complex. It does not appear that appointment of counsel is warranted in this instance. 6 Sharpe’s motion for the appointment of counsel is denied. 7 IT IS THEREFORE ORDERED that the Clerk shall ELECTRONICALLY SERVE the 8 amended petition for writ of habeas corpus (ECF No. 10) and a copy of this order on the respondents. 9 IT IS FURTHER ORDERED that the Clerk of the Court shall add Adam Paul Laxalt, Attorney 10 General of the State of Nevada, as counsel for respondents. 11 IT IS FURTHER ORDERED that respondents shall file a response to the amended petition, 12 including potentially a motion to dismiss, within sixty (60) days of the date of this order, with any 13 requests for relief by petitioner by motion otherwise being subject to the normal briefing schedule under 14 the local rules. 15 IT IS FURTHER ORDERED that petitioner shall have thirty (30) days from service of the 16 answer, motion to dismiss, or other response to file a reply or opposition, with any other requests for 17 relief by respondents by motion otherwise being subject to the normal briefing schedule under the local 18 rules. 19 IT IS FURTHER ORDERED that any additional state court record exhibits filed herein by 20 either petitioner or respondents shall be filed with a separate index of exhibits identifying the exhibits 21 by number. The CM/ECF attachments that are filed shall be identified by the number or numbers of 22 the exhibits in the attachment. The hard copy of any additional state court record exhibits shall be 23 forwarded – for this case – to the staff attorneys in Reno. 24 25 26 IT IS FURTHER ORDERED that petitioner’s motion for appointment of counsel (ECF No. 11) is DENIED. DATED: December 19, 2016. 27 28 __________________________________ UNITED STATES DISTRICT JUDGE -2-

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