Mosby v. Baker

Filing 9

ORDER. IT IS THEREFORE ORDERED that 6 petitioner's application to proceed in forma pauperis is GRANTED. IT IS FURTHER ORDERED that the Clerk shall ELECTRONICALLY SERVE 1 the petition on the respondents. IT IS FURTHER ORDERED that the Cl erk shall add Adam Paul Laxalt, Nevada Attorney General, as counsel for respondents. IT IS FURTHER ORDERED that 8 the motion to appoint the FPD as counsel for petitioner is GRANTED. IT IS FURTHER ORDERED that respondents shall file a response to the petition, including potentially by motion to dismiss, within ninety (90) days of service of the petition. Signed by Judge James C. Mahan on 4/12/17. (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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***

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MARVIN MOSBY,

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Case No. 2:16-cv-03028-JCM-CWH
Petitioner,

ORDER

v.
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RENEE BAKER, et al.,
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Respondents.
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Petitioner Marvin Mosby, through the Federal Public Defender (FPD) has filed a

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petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. His application to

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proceed in forma pauperis shall be granted (ECF No. 6).

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The FPD has moved to be appointed as counsel in this case (ECF No. 8). There

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

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Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); Bonin v. Vasquez, 999 F.2d 425, 428

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(9th Cir.1993). The decision to appoint counsel is generally discretionary. Chaney v.

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

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v. Risley, 730 F.2d 1228, 1234 (9th Cir.), cert. denied, 469 U.S. 838 (1984). However,

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counsel must be appointed if the complexities of the case are such that denial of

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

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of such limited education as to be incapable of fairly presenting his claims. See

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Chaney, 801 F.2d at 1196; see also Hawkins v. Bennett, 423 F.2d 948 (8th Cir.1970).

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As the FPD explains in the motion for appointment of counsel, this petition is the
third that Mosby has pending before this court (ECF No. 8). He challenges three
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separate habitual offender convictions that were entered within several months of each
other. This court has already appointed the FPD in the first and second of the three
cases on the bases that Mosby is serving a life term without the possibility of parole, he
suffers from health issues, and his access to legal materials may be restricted. Good
cause appearing, the motion to appoint the FPD as counsel in this case is granted.
The court has reviewed the petition pursuant to Habeas Rule 4, and it shall be
served on respondents.
IT IS THEREFORE ORDERED that petitioner’s application to proceed in forma
pauperis (ECF No. 6) is GRANTED.
IT IS FURTHER ORDERED that the Clerk shall ELECTRONICALLY SERVE the
petition (ECF No. 1) on the respondents.
IT IS FURTHER ORDERED that the Clerk shall add Adam Paul Laxalt, Nevada
Attorney General, as counsel for respondents.
IT IS FURTHER ORDERED that the motion to appoint the FPD as counsel for
petitioner (ECF No. 8) is GRANTED.
IT IS FURTHER ORDERED that respondents shall file a response to the petition,
including potentially by motion to dismiss, within ninety (90) days of service of the
petition, with any requests for relief by petitioner by motion otherwise being subject to
the normal briefing schedule under the local rules. Any response filed shall comply with
the remaining provisions below, which are entered pursuant to Habeas Rule 5.
IT IS FURTHER ORDERED that any procedural defenses raised by respondents
in this case shall be raised together in a single consolidated motion to dismiss. In other
words, the court does not wish to address any procedural defenses raised herein either
in seriatum fashion in multiple successive motions to dismiss or embedded in the
answer. Procedural defenses omitted from such motion to dismiss will be subject to
potential waiver. Respondents shall not file a response in this case that consolidates
their procedural defenses, if any, with their response on the merits, except pursuant to

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28 U.S.C. § 2254(b)(2) as to any unexhausted claims clearly lacking merit. If
respondents do seek dismissal of unexhausted claims under § 2254(b)(2): (a) they shall
do so within the single motion to dismiss not in the answer; and (b) they shall
specifically direct their argument to the standard for dismissal under § 2254(b)(2) set
forth in Cassett v. Stewart, 406 F.3d 614, 623-24 (9th Cir. 2005). In short, no
procedural defenses, including exhaustion, shall be included with the merits in an
answer. All procedural defenses, including exhaustion, instead must be raised by
motion to dismiss.

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IT IS FURTHER ORDERED that, in any answer filed on the merits, respondents
shall specifically cite to and address the applicable state court written decision and state
court record materials, if any, regarding each claim within the response as to that claim.

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IT IS FURTHER ORDERED that petitioner shall have forty-five (45) days from
service of the answer, motion to dismiss, or other response to file a reply or opposition,
with any other requests for relief by respondents by motion otherwise being subject to
the normal briefing schedule under the local rules.

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IT IS FURTHER ORDERED that any additional state court record exhibits filed
herein by either petitioner or respondents shall be filed with a separate index of exhibits
identifying the exhibits by number. The CM/ECF attachments that are filed further shall
be identified by the number of the exhibit in the attachment. Any further exhibits shall
continue sequentially from the exhibits petitioner has already filed (see ECF Nos.
3-5).

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IT IS FURTHER ORDERED that the parties SHALL SEND courtesy copies of all
exhibits in this case to the Clerk of Court, 400 S. Virginia St., Reno, NV, 89501, directed
to the attention of “Staff Attorney” on the outside of the mailing address label. Additionally,
in the future, all parties shall provide courtesy copies of any additional exhibits submitted
to the court in this case, in the manner described above.

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April 12, 2017.
DATED: 11 April 2017.

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JAMES C. MAHAN
UNITED STATES DISTRICT JUDGE

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