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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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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PHILLIP SHARPE,
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Petitioner,

2:16-cv-01841-JCM-VCF

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vs.
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ORDER
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NEVIN, et al.,
Respondents.

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This is a habeas corpus proceeding under 28 U.S.C. § 2254 brought by Phillip Sharpe, a Nevada

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prisoner. On November 8, 2016, this court entered a screening order identifying defects in Sharpe’s

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initial habeas petition and granting him leave to amend. ECF No. 8. On November 21, 2016, Sharpe

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filed an amended petition. ECF No. 10.

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The court has screened the amended petition and concludes that the respondents shall be served

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with the amended petition and directed to respond to it. See Rule 4, Rules Governing § 2254 Cases in

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the U.S. District Courts.

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In addition, Sharpe has filed a motion for the appointment of counsel. ECF No. 11. Pursuant

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to 18 U.S.C. §3006A(a)(2)(B), the district court has discretion to appoint counsel when it determines

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that the “interests of justice” require representation. There is no constitutional right to appointed

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counsel for a federal habeas corpus proceeding. Pennsylvania v. Finley, 481 U.S. 551, 555 (1987);

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Bonin v. Vasquez, 999 F.2d 425, 428 (9th Cir. 1993). The decision to appoint counsel is generally

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discretionary. Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986); Bashor v. Risley, 730 F.2d 1228,

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1234 (9th Cir. 1984). However, counsel must be appointed if the complexities of the case are such that

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denial of counsel would amount to a denial of due process, and where the petitioner is a person of such

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limited education as to be incapable of fairly presenting his claims. See Chaney, 801 F.2d at 1196; see

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also Hawkins v. Bennett, 423 F.2d 948, 950 (8th Cir. 1970). The petition on file in this action is

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sufficiently clear in presenting the issues that Sharpe wishes to bring. Also, the issues in this case are

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not particularly complex. It does not appear that appointment of counsel is warranted in this instance.

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Sharpe’s motion for the appointment of counsel is denied.

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IT IS THEREFORE ORDERED that the Clerk shall ELECTRONICALLY SERVE the

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amended petition for writ of habeas corpus (ECF No. 10) and a copy of this order on the respondents.

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IT IS FURTHER ORDERED that the Clerk of the Court shall add Adam Paul Laxalt, Attorney

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General of the State of Nevada, as counsel for respondents.

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IT IS FURTHER ORDERED that respondents shall file a response to the amended petition,

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including potentially a motion to dismiss, within sixty (60) days of the date of this order, with any

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requests for relief by petitioner by motion otherwise being subject to the normal briefing schedule under

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the local rules.

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IT IS FURTHER ORDERED that petitioner shall have thirty (30) days from service of the

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answer, motion to dismiss, or other response to file a reply or opposition, with any other requests for

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relief by respondents by motion otherwise being subject to the normal briefing schedule under the local

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rules.

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IT IS FURTHER ORDERED that any additional state court record exhibits filed herein by

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either petitioner or respondents shall be filed with a separate index of exhibits identifying the exhibits

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by number. The CM/ECF attachments that are filed shall be identified by the number or numbers of

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the exhibits in the attachment. The hard copy of any additional state court record exhibits shall be

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forwarded – for this case – to the staff attorneys in Reno.

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IT IS FURTHER ORDERED that petitioner’s motion for appointment of counsel (ECF No.
11) is DENIED.
DATED: December 19, 2016.

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__________________________________
UNITED STATES DISTRICT JUDGE
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