Rider v. Esmeralda County Sheriff

Filing 26

ORDER. IT IS ORDERED that 10 respondents' motion to dismiss is DISMISSED without prejudice.IT IS FURTHER ORDERED that 15 petitioner's unopposed first motion for leave to file a supplement to the petition is GRANTED. The Clerk s hall DETACH and FILE 15 -1 the supplement to the petition.IT IS FURTHER ORDERED that 18 petitioner's second motion for leave to supplement the petition is DENIED. IT IS FURTHER ORDERED that 17 petitioner's motion for appointment of counsel and 19 motion for summary judgment or evidentiary hearing are both DENIED.See Order for details/deadlines. Signed by Judge Richard F. Boulware, II on 9/24/2018. (Copies have been distributed pursuant to the NEF - MR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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JUSTIN CHANSE RIDER,

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Petitioner,

Case No. 2:17-cv-02822-RFB-VCF
ORDER

v.
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ESMERALDA COUNTY SHERIFF,
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Respondent.
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This is a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 by

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pretrial detainee Justin Chanse Rider (ECF No. 6). In response to this court’s order,

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respondents have filed an amended motion to dismiss the petition and included relevant

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portions of the state-court record (ECF No. 25). Respondents also inform the court that

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they will supplement the record with the most recent state-court proceedings, including a

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hearing that took place on the date respondents filed their amended motion to dismiss.

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Accordingly, the original motion to dismiss is dismissed without prejudice, and the court

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will set a new briefing schedule for the amended motion to dismiss.

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Rider has also filed a motion for appointment of counsel (ECF No. 17). There is

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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 counsel

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would amount to a denial of due process, and where the petitioner is a person of such
limited education as to be incapable of fairly presenting his claims. See Chaney, 801
F.2d at 1196; see also Hawkins v. Bennett, 423 F.2d 948 (8th Cir.1970). Here, Rider’s
petition sets forth his claim clearly, and the legal issue is not complex. Therefore, the
court concludes that counsel is not justified; Rider’s motion is denied.
Next, the court will grant Rider’s first motion to supplement the petition, which
respondents do not oppose (ECF Nos. 15, 16). Rider has also filed a second motion to
supplement the petition (ECF No. 18).

However, respondents are correct that the

proposed second supplement does not add any additional federal habeas grounds or
additional factual allegations in support of Rider’s petition.
supplement is denied.

The second motion to

Finally, Rider has filed a motion for summary judgment or

evidentiary hearing (ECF No. 19). The motion is unsupported and premature; it is denied.
IT IS THEREFORE ORDERED that respondents’ motion to dismiss (ECF No. 10)
is DISMISSED without prejudice as set forth in this order.
IT IS FURTHER ORDERED that respondents shall file any supplemental exhibits
to the amended motion to dismiss (ECF No. 25) within thirty (30) days of the date of
this order or shall file a notice with the court as to the status of any relevant outstanding
portions of the state-court record.
IT IS FURTHER ORDERED that petitioner shall file his opposition to the
amended motion to dismiss, if any, within forty-five (45) days of the date of this order.
Respondents shall file their reply in support of the motion to dismiss, if any, in
accordance with the normal briefing schedule set forth in the local rules.
IT IS FURTHER ORDERED that petitioner’s unopposed first motion for leave to
file a supplement to the petition (ECF No. 15) is GRANTED. The Clerk shall DETACH
and FILE the supplement to the petition (ECF No. 15-1).
IT IS FURTHER ORDERED that petitioner’s second motion for leave to
supplement the petition (ECF No. 18) is DENIED.

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IT IS FURTHER ORDERED that petitioner’s motion for appointment of counsel
(ECF No. 17) and motion for summary judgment or evidentiary hearing (ECF No. 19)
are both DENIED as set forth in this order.

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DATED: September 24, 2018.

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RICHARD F. BOULWARE, II
UNITED STATES DISTRICT JUDGE

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