Fields v. LeGrand et al

Filing 5

ORDERED that the Clerk shall FILE and E- SERVE the petition #'s 1 -2, 1 -3) on the Rs. FURTHER ORD that Rs' answer/response to petition due by 8/5/2011. 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, with a certificate of service. FURTHER ORD that the Clerk shall DETACH and FILE P's motion for appointment of counsel (# 1 -4). FURTHER ORD that P's motion for appointment of counsel is DENIED without prejudice. ( E-service upon AG, and copy of filed petition mailed to P on 6/21/2011 ) Signed by Judge Larry R. Hicks on 6/20/2011. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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MATTHEW ARTHUR FIELDS,

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Petitioner,
vs.

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ROBERT LEGRAND, et al.,
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Respondents.
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3:11-cv-00341-LRH-RAM
ORDER

Matthew Arthur Fields, a Nevada prisoner, has submitted a petition for a writ of habeas corpus,
pursuant to 28 U.S.C. § 2254 (docket #s 1-2, 1-3).
Petitioner has now paid the filing fee (see docket #4). Therefore, the habeas petition shall be
filed and docketed, and it shall be served upon the respondents.

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

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aware. If petitioner fails to include such a claim in his petition, he may be forever barred from seeking

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federal habeas relief upon that claim. See 28 U.S.C. §2254(b) (successive petitions). If petitioner is

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aware of any claim not included in his petition, he should notify the court of that as soon as possible,

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perhaps by means of a motion to amend his petition to add the claim.

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Petitioner has also submitted a motion for the appointment of counsel (docket #1-4). There is no

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constitutional right to appointed counsel for a federal habeas corpus proceeding. Pennsylvania v. Finley,

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481 U.S. 551, 555 (1987); Bonin v. Vasquez, 999 F.2d 425, 428 (9th Cir.1993). The decision to appoint

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counsel is generally discretionary. Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir.1986), cert. denied,

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481 U.S. 1023 (1987); Bashor v. Risley, 730 F.2d 1228, 1234 (9th Cir.), cert. denied, 469 U.S. 838

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(1984). However, 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 of such limited

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education as to be incapable of fairly presenting his claims. See Chaney, 801 F.2d at 1196; see also

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Hawkins v. Bennett, 423 F.2d 948 (8th Cir.1970). The petition in this action appears sufficiently clear

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in presenting the issues that petitioner wishes to raise. Counsel is not justified at this time. The motion

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is denied without prejudice.

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IT IS THEREFORE ORDERED that the Clerk shall FILE and ELECTRONICALLY
SERVE the petition (docket #s 1-2, 1-3) on the respondents.

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IT IS FURTHER ORDERED that respondents shall have forty-five (45) days from entry of

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this order within which to answer, or otherwise respond to, the petition. In their answer or other

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response, respondents shall address any claims presented by petitioner in his petition as well as any

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claims presented by petitioner in any Statement of Additional Claims. Respondents shall raise all

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potential affirmative defenses in the initial responsive pleading, including lack of exhaustion and

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procedural default. Successive motions to dismiss will not be entertained. If an answer is filed,

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respondents shall comply with the requirements of Rule 5 of the Rules Governing Proceedings in the

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United States District Courts under 28 U.S.C. §2254. If an answer is filed, petitioner shall have forty-

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five (45) days from the date of service of the answer to file a reply.

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IT IS FURTHER ORDERED that, henceforth, petitioner shall serve upon the Attorney General

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of the State of Nevada a copy of every pleading, motion, or other document he submits for consideration

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by the court. Petitioner shall include with the original paper submitted for filing a certificate stating the

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date that a true and correct copy of the document was mailed to the Attorney General. The court may

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disregard any paper that does not include a certificate of service. After respondents appear in this action,

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petitioner shall make such service upon the particular Deputy Attorney General assigned to the case.

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IT IS FURTHER ORDERED that the Clerk shall DETACH and FILE petitioner’s motion for

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appointment of counsel (docket #1-4).

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IT IS FURTHER ORDERED that petitioner’s motion for appointment of counsel (docket #1-4)
is DENIED without prejudice.

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DATED this 20th day of June, 2011.

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___________________________________
LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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