Oliver v. Williams et al

Filing 6

ORDER that Petitioner's IFP application ECF No. 4 is granted; Clerk directed to file the petition; Clerk directed to add NV AG as counsel for respondents and electronically serve a copy of the petition and this order upon respondents ( e-service on 5/25/2018); respondents to file an answer/response to the petition by 7/9/2018; petitioner shall have 45 days from service of answer to file a reply; paper copies of any electronically filed exhibits need not be provided to chamb ers or to the staff attorney, unless later directed by the Court; Petitioner's motion for appointment of counsel (ECF No. 5 ) is denied. See Order for further details and instructions. Signed by Judge Miranda M. Du on 5/25/2018. (Copies have been distributed pursuant to the NEF - LH)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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DONALD ALVA OLIVER,

Case No. 2:17-cv-03008-MMD-CWH
Petitioner,

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ORDER

v.
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BRIAN WILLIAMS, et al.,
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Respondents.
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Petitioner has submitted an application to proceed in forma pauperis (ECF No. 4)

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and a petition for a writ of habeas corpus (ECF No. 1-1) pursuant to 28 U.S.C. § 2254.

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The Court finds that petitioner is unable to pay the filing fee. The Court has also reviewed

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the petition pursuant to Rule 4 of the Rules Governing § 2254 Cases in the United States

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District Courts. The Court will serve the petition upon Respondents for a response.

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Petitioner has filed a motion for appointment of counsel (ECF No. 5). Whenever the

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Court determines that the interests of justice so require, counsel may be appointed to any

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financially eligible person who is seeking habeas corpus relief. 18 U.S.C. §

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3006A(a)(2)(B). “[T]he district court must evaluate the likelihood of success on the merits

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

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of the legal issues involved.” Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). There

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is no constitutional right to counsel in federal habeas proceedings. McCleskey v. Zant,

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499 U.S. 467, 495 (1991). The factors to consider are not separate from the underlying

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claims, but are intrinsically enmeshed with them. Weygandt, 718 F.2d at 954. After

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reviewing the petition, the Court finds that appointment of counsel is not warranted.

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It is therefore ordered that the application to proceed in forma pauperis (ECF No.
4) is granted. Petitioner need not pay the filing fee of five dollars ($5.00).
It is further ordered that the clerk of the Court file the petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254.
It is further ordered that the clerk add Adam Paul Laxalt, Attorney General for the
State of Nevada, as counsel for Respondents.

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It is further ordered that the clerk electronically serve upon Respondents a copy of

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the petition and this Order. In addition, the clerk shall return to Petitioner a copy of the

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petition.

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It is further ordered that Respondents will have forty-five (45) days from the date

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on which the petition was served to answer or otherwise respond to the petition.

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Respondents shall raise all potential affirmative defenses in the initial responsive pleading,

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including untimeliness, lack of exhaustion, and procedural default. Successive motions to

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dismiss will not be entertained. If Respondents file and serve an answer, then they must

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comply with Rule 5 of the Rules Governing § 2254 Cases in the United States District

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Courts, and then Petitioner will have forty-five (45) days from the date on which the answer

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is served to file a reply. If Respondents file a motion, then Petitioner will have fourteen

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(14) days to file a response to the motion, and Respondents will have seven (7) days from

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the date of filing of the response to file a reply.

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It is further ordered that, notwithstanding Local Rule LR IC 2-2(g) paper copies of

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any electronically filed exhibits need not be provided to chambers or to the staff attorney,

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unless later directed by the Court.

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It is further ordered that Petitioner’s motion for appointment of counsel (ECF No. 5)
is denied.
DATED THIS 25th day of May 2018.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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