Harkins v. Palmer

Filing 10

FURTHER ORD Clerk shall ELECTRONICALLY SERVE the petition and signature page upon the Rs. ( E-Service performed 12/15/2010 concurrently with this Order ) FURTHER ORD Rs' answer/response to petition due 1/29/2011 . If an answer is filed P shall have 45 days from the date of service of the answer to file a reply. FURTHER ORD that henceforth P shall serve AG a copy of every document he submits for consideration by the Court, with a certificate of service. FURTHER ORD P's # 5 App lication to proceed in forma pauperis is DENIED. FURTHER ORD P's # 6 Motion for appointment of counsel is DENIED. Signed by Judge Edward C. Reed, Jr on 12/14/2010. ( Attachments: # 1 Petition (doc. #8), # 2 Signature Page (doc.#9) )(Copies have been distributed pursuant to the NEF - DRM)

-RAM Harkins v. Palmer

Doc. 10

1 2 3 4 5 6 7 8 9 10 11 12 JERRY HARKINS, 13 14 15 16 17 18 Petitioner has submitted a pro se petition for writ of habeas corpus pursuant to 28 19 U.S.C. § 2254. Petitioner has paid the filing fee for this action. 20 By order filed November 2, 2010, the Court directed petitioner to submit a signature 21 page, because the petition lacked a signature page. (Docket #7). The Court also directed the Clerk 22 to file the petition. (Docket #7 and #8). On November 15, 2010, petitioner filed the required 23 signature page. (Docket #9). The habeas petition is supplemented by the signature page. (Docket 24 #8 and #9). The Court has reviewed the petition. The petition shall now be served on respondents. 25 A petition for federal habeas corpus should include all claims for relief of which petitioner is aware. 26 ) ) Petitioner, ) ) vs. ) ) JACK PALMER, et al., ) ) Respondents. ) ____________________________________/ 3:10-cv-00372-ECR-RAM ORDER UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

Dockets.Justia.com

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If petitioner fails to include such a claim in his petition, he may be forever barred from seeking federal habeas relief upon that claim. See 28 U.S.C. §2254(b) (successive petitions). In addition, the Court has reviewed petitioner's application to proceed in forma pauperis. (Docket #5). Petitioner has paid the filing fee for this action (Docket #4), making the application to proceed in forma pauperis unnecessary in this case. Petitioner's application to proceed in forma pauperis is denied. Petitioner has also filed a motion for the appointment of counsel. (Docket #6). There is no constitutional right to appointed counsel for a federal habeas corpus proceeding. Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); Bonin v. Vasquez, 999 F.2d 425, 428 (9th Cir. 1993). The decision to appoint counsel is generally discretionary. Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986), cert. denied, 481 U.S. 1023 (1987); Bashor v. Risley, 730 F.2d 1228, 1234 (9th Cir.), cert. denied, 469 U.S. 838 (1984). However, counsel must be appointed if the complexities of the case are such that denial of counsel 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). The petition on file in this action is well-written and sufficiently clear in presenting the issues that petitioner wishes to bring. The issues in this case are not complex. It does not appear that counsel is justified in this instance. The motion shall be denied. IT IS THEREFORE ORDERED that the Clerk shall ELECTRONICALLY SERVE the petition (Docket #8) and signature page (Docket #9) upon the respondents. IT IS FURTHER ORDERED that respondents shall have forty-five (45) days from entry of this order within which to answer, or otherwise respond to, the petition. In their answer or other response, respondents shall address any claims presented by petitioner in his petition. Respondents shall raise all potential affirmative defenses in the initial responsive pleading, including lack of exhaustion and procedural default. Successive motions to dismiss will not be entertained. 2

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If an answer is filed, respondents shall comply with the requirements of Rule 5 of the Rules Governing Proceedings in the United States District Courts under 28 U.S.C. §2254. If an answer is filed, petitioner shall have forty-five (45) days from the date of service of the answer to file a reply. IT IS FURTHER ORDERED that, henceforth, petitioner shall serve upon the Attorney General of the State of Nevada a copy of every pleading, motion, or other document he submits for consideration by the Court. Petitioner shall include with the original paper submitted for filing a certificate stating the date that a true and correct copy of the document was mailed to the Attorney General. The Court may disregard any paper that does not include a certificate of service. After respondents appear in this action, petitioner shall make such service upon the particular Deputy Attorney General assigned to the case. IT IS FURTHER ORDERED that petitioner's application to proceed in forma pauperis (Docket #5) is DENIED. IT IS FURTHER ORDERED that petitioner's motion for the appointment of counsel (Docket #6) is DENIED. Dated this 14th day of December, 2010. ___________________________________ UNITED STATES DISTRICT JUDGE

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