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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1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 4 Evier Paez, 5 2:16-cv-02737-JAD-NJK Petitioner 6 v. 7 Order Dwight Neven, et al., 8 [ECF Nos. 1, 2, 3] Respondents 9 10 Nevada state prisoner Evier Paez petitions for a writ of habeas corpus and moves to 11 proceed in forma pauperis,1 for leave to file an oversized petition,2 and for appointment of 12 counsel.3 Paez did not attach the appropriate documentation to his pauper application to allow 13 me to properly evaluate it, so I deny the application without prejudice to his ability to refile in 14 accordance with the local rules. I also deny his motion for leave to file an oversized petition as 15 unnecessary because there is no page limit under Local Rule LSR 3-2(b). And because Paez has 16 demonstrated that he is capable of articulating his claims, due process does not mandate that he 17 be represented by counsel under these circumstances and I decline to appoint him counsel. 18 19 20 Discussion A. 21 In forma pauperis application Paez’s pauper application is incomplete. Under 28 U.S.C. § 1915(a)(2) and LSR1-2 of 22 the local rules, Paez must attach both a properly executed financial certificate and an inmate 23 account statement for the past six months. He did not attach either. So I deny the application 24 without prejudice to his ability to refile it with the appropriate documentation. Paez must either 25 1 ECF No. 1. 2 ECF No. 3. 3 ECF No. 2. 26 27 28 1 pay the $5.00 filing fee or file a properly completed pauper application by October 27, 2017. 2 B. Oversized petition Paez asks for permission to file an oversized petition,4 and he cites to the Federal Rules of 3 4 Appellate Procedure. As this is not an appeal, the Federal Rules of Appellate Procedure do not 5 apply. Instead, LSR 3-2 of the Local Rules of Practice applies, which expressly states “there is 6 no page limit with respect to habeas corpus petitions.”5 I therefore deny Paez’s motion as 7 unnecessary. 8 C. 9 Appointment of counsel Finally, Paez also requests appointment of counsel to pursue his petition for a writ of 10 habeas corpus. There is no constitutional right to counsel for a federal habeas corpus 11 proceeding.6 But I have discretion to appoint counsel if the “interests of justice require 12 representation,” and I must appoint counsel if the case is so complex that denial of counsel would 13 amount to a denial of due process.7 I “must evaluate the likelihood of success on the merits as 14 well as the ability of the petitioner to articulate his claims pro se in light of the complexity of the 15 legal issues involved.”8 The factors to consider are not separate from the underlying claims but 16 are intrinsically enmeshed with them.9 17 I deny the motion for appointment of counsel. Paez has demonstrated that he can clearly 18 articulate the claims that he believes entitle him to habeas corpus relief,10 and though some of his 19 claims involve somewhat-complex legal issues, he presents copious, articulate arguments for 20 21 4 ECF No. 3. 22 5 L.S.R. 3-2(b). 6 Penn. v. Finley, 481 U.S. 551, 555 (1987). 7 See Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986), cert. denied, 481 U.S. 1023 (1987). 8 See Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). 27 9 Id. 28 10 23 24 25 26 ECF No. 1-1. 2 1 each of his claims. 2 Conclusion 3 Accordingly, IT IS HEREBY ORDERED that Paez’s application to proceed in forma 4 pauperis [ECF No. 1] is DENIED without prejudice. Paez has until October 27, 2017, to 5 either pay the $5.00 filing fee or file a new and complete application to proceed in forma 6 pauperis together with a properly executed financial certificate and an inmate account 7 statement for the past six months. If Paez fails to either pay the filing fee or submit a properly 8 completed new pauper application before this court-ordered deadline, this action will be 9 dismissed without further advance notice. The Clerk of Court is directed to SEND Paez two copies of an in forma pauperis 10 11 application form for incarcerated persons along with one copy of the instructions for the 12 same. 13 14 15 16 17 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. 18 _______________________________ ________________ _____ _ ______________ ____ _ Jennifer A. Dorsey Jennifer A. Dorsey n y United States District Judge United States District Judg ited t t t 19 20 21 22 23 24 25 26 27 28 3

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