Wirth v. LeGrand et al

Filing 10

ORDER granting Petitioner's 1 Motion/Application for Leave to Proceed in forma pauperis. Petitioner's 2 Motion to Appoint Counsel is denied. Petitioner's 6 and 7 Motions for copies are denied as moot. The Clerk of the Court shall add Adam Paul Laxalt, Nevada Attorney General as counsel for respondents. Signed by Judge Richard F. Boulware, II on 9/29/2017. (Copies have been distributed pursuant to the NEF - CVL)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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CHARLES WIRTH,

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Case No. 2:17-cv-00027-RFB-VCF
Petitioner,

ORDER

v.
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ROBERT LEGRAND, et al.,
Respondents.

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Petitioner Charles Wirth has submitted a pro se petition for writ of habeas corpus

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pursuant to 28 U.S.C. § 2254. His application to proceed in forma pauperis (ECF No. 1)

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shall be granted. The court has reviewed the petition pursuant to Habeas Rule 4, and it

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shall be docketed and served on respondents.

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A petition for federal habeas corpus should include all claims for relief of which

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petitioner is aware. If petitioner fails to include such a claim in his petition, he may be

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forever barred from seeking federal habeas relief upon that claim.

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§2244(b) (successive petitions). If petitioner is aware of any claim not included in his

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petition, he should notify the court of that as soon as possible, perhaps by means of a

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motion to amend his petition to add the claim.

See 28 U.S.C.

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Wirth has also filed a motion for appointment of counsel (ECF No. 2). There is no

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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,
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428(9th Cir. 1993). The decision to appoint counsel is generally discretionary. Chaney

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v. 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. 1984), cert. denied, 469 U.S. 838 (1984).

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

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of 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 Chaney,

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

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legal issues that petitioner raises pursuant to his guilty plea do not appear to be

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particularly complex, and he demonstrates in his petition the ability to fairly present his

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claims. Therefore, the motion for counsel shall be denied at this time.
IT IS THEREFORE ORDERED that petitioner’s application to proceed in forma
pauperis (ECF No. 1) is GRANTED.
IT IS FURTHER ORDERED that the Clerk shall file and ELECTRONICALLY
SERVE the petition (ECF No. 1-1) on the respondents.
IT IS FURTHER ORDERED that the Clerk shall send to petitioner one copy of the
petition.
IT IS FURTHER ORDERED that the Clerk shall add Adam Paul Laxalt, Nevada
Attorney General, as counsel for respondents.

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

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including potentially by motion to dismiss, within ninety (90) days of service of the

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petition, with any requests for relief by petitioner by motion otherwise being subject to the

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normal briefing schedule under the local rules. Any response filed shall comply with the

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remaining provisions below, which are entered pursuant to Habeas Rule 5.

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IT IS FURTHER ORDERED that any procedural defenses raised by respondents

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in this case shall be raised together in a single consolidated motion to dismiss. In other

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words, the court does not wish to address any procedural defenses raised herein either

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in seriatum fashion in multiple successive motions to dismiss or embedded in the answer.

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Procedural defenses omitted from such motion to dismiss will be subject to potential
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waiver.

Respondents shall not file a response in this case that consolidates their

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procedural defenses, if any, with their response on the merits, except pursuant to 28

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U.S.C. § 2254(b)(2) as to any unexhausted claims clearly lacking merit. If respondents

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do seek dismissal of unexhausted claims under § 2254(b)(2): (a) they shall do so within

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the single motion to dismiss not in the answer; and (b) they shall specifically direct their

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argument to the standard for dismissal under § 2254(b)(2) set forth in Cassett v. Stewart,

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406 F.3d 614, 623-24 (9th Cir. 2005).

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exhaustion, shall be included with the merits in an answer. All procedural defenses,

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including exhaustion, instead must be raised by motion to dismiss.

In short, no procedural defenses, including

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IT IS FURTHER ORDERED that, in any answer filed on the merits, respondents

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shall specifically cite to and address the applicable state court written decision and state

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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 sixty (60) days from service

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of the answer, motion to dismiss, or other response to file a reply or opposition, with any

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other requests for relief by respondents by motion otherwise being subject to the normal

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briefing schedule under the local rules.

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

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herein by either petitioner or respondents shall be filed with a separate index of exhibits

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identifying the exhibits by number. The CM/ECF attachments that are filed further shall

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be identified by the number of the exhibit in the attachment.

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IT IS FURTHER ORDERED that the parties SHALL SEND courtesy copies of all

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exhibits in this case to the Clerk of Court, 400 S. Virginia St., Reno, NV, 89501, directed

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to the attention of “Staff Attorney” on the outside of the mailing address label. Additionally,

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in the future, all parties shall provide courtesy copies of any additional exhibits submitted

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to the court in this case, in the manner described above.

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IT IS FURTHER ORDERED that petitioner’s motion for appointment of counsel
(ECF No. 2) is DENIED.

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IT IS FURTHER ORDERED that petitioner’s two motions for copies of filings (ECF
Nos. 6 and 7) are both DENIED as moot.

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DATED: 29 September 2017.

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RICHARD F. BOULWARE, II
UNITED STATES DISTRICT JUDGE

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