Paez v. Neven et al

Filing 7

ORDER denying 1 Motion/Application for Leave to Proceed in forma pauperis. Payment of filing fees or new IFP due 10/27/2017.; denying 2 Motion to Appoint Counsel. denying 3 Motion for Leave to File. Signed by Judge Jennifer A. Dorsey on 9/26/2017. (Copies have been distributed pursuant to the NEF, cc: 2 IFPs to P - JM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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Evier Paez,

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2:16-cv-02737-JAD-NJK

Petitioner

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v.

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Order

Dwight Neven, et al.,

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[ECF Nos. 1, 2, 3]

Respondents

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Nevada state prisoner Evier Paez petitions for a writ of habeas corpus and moves to

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proceed in forma pauperis,1 for leave to file an oversized petition,2 and for appointment of

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counsel.3 Paez did not attach the appropriate documentation to his pauper application to allow

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me to properly evaluate it, so I deny the application without prejudice to his ability to refile in

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accordance with the local rules. I also deny his motion for leave to file an oversized petition as

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unnecessary because there is no page limit under Local Rule LSR 3-2(b). And because Paez has

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demonstrated that he is capable of articulating his claims, due process does not mandate that he

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be represented by counsel under these circumstances and I decline to appoint him counsel.

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Discussion
A.

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In forma pauperis application
Paez’s pauper application is incomplete. Under 28 U.S.C. § 1915(a)(2) and LSR1-2 of

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the local rules, Paez must attach both a properly executed financial certificate and an inmate

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account statement for the past six months. He did not attach either. So I deny the application

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without prejudice to his ability to refile it with the appropriate documentation. Paez must either

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ECF No. 1.

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ECF No. 3.

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ECF No. 2.

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pay the $5.00 filing fee or file a properly completed pauper application by October 27, 2017.

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B.

Oversized petition
Paez asks for permission to file an oversized petition,4 and he cites to the Federal Rules of

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Appellate Procedure. As this is not an appeal, the Federal Rules of Appellate Procedure do not

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apply. Instead, LSR 3-2 of the Local Rules of Practice applies, which expressly states “there is

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no page limit with respect to habeas corpus petitions.”5 I therefore deny Paez’s motion as

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unnecessary.

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C.

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Appointment of counsel
Finally, Paez also requests appointment of counsel to pursue his petition for a writ of

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

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proceeding.6 But I have discretion to appoint counsel if the “interests of justice require

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representation,” and I must appoint counsel if the case is so complex that denial of counsel would

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amount to a denial of due process.7 I “must evaluate the likelihood of success on the merits as

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well as the ability of the petitioner to articulate his claims pro se in light of the complexity of the

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legal issues involved.”8 The factors to consider are not separate from the underlying claims but

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are intrinsically enmeshed with them.9

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I deny the motion for appointment of counsel. Paez has demonstrated that he can clearly

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articulate the claims that he believes entitle him to habeas corpus relief,10 and though some of his

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claims involve somewhat-complex legal issues, he presents copious, articulate arguments for

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ECF No. 3.

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L.S.R. 3-2(b).

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Penn. v. Finley, 481 U.S. 551, 555 (1987).

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See Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986), cert. denied, 481 U.S. 1023 (1987).

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See Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983).

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Id.

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ECF No. 1-1.
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each of his claims.

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Conclusion

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

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pauperis [ECF No. 1] is DENIED without prejudice. Paez has until October 27, 2017, to

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either pay the $5.00 filing fee or file a new and complete application to proceed in forma

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pauperis together with a properly executed financial certificate and an inmate account

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statement for the past six months. If Paez fails to either pay the filing fee or submit a properly

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completed new pauper application before this court-ordered deadline, this action will be

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dismissed without further advance notice.
The Clerk of Court is directed to SEND Paez two copies of an in forma pauperis

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application form for incarcerated persons along with one copy of the instructions for the

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same.

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IT IS FURTHER ORDERED that Paez’s motion for appointment of counsel [ECF No. 2]
is DENIED without prejudice.
IT IS FURTHER ORDERED that Paez’s motion for leave to file an oversized petition
[ECF No. 3] is DENIED.
DATED: September 26, 2017.

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_______________________________
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Jennifer A. Dorsey
Jennifer A. Dorsey
n
y
United States District Judge
United States District Judg
ited t
t
t

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