Bartlett v. Nevin et al

Filing 3

ORDER. IT IS HEREBY ORDERED that petitioner's 1 application to proceed in forma pauperis is GRANTED. FURTHER ORDERED, the Clerk shall FILE and ELECTRONICALLY SERVE the petition on the respondents (See 4 NEF for d etail). FURTHER ORDERED, respondents shall have forty-five (45) days from entry of this order within which to answer, or otherwise respond to, the petition. If an answer is filed, petitioner shall have forty-five (45) days from the dat e of service of the answer to file a reply. FURTHER ORDERED, petitioner is provided filing instructions and requirements for this action. FURTHER ORDERED, the Clerk shall DETACH and FILE petitioner's motion for appointment of counsel (docket # 1 -2). FURTHER ORDERED, petitioner's motion for appointment of counsel is DENIED without prejudice. Signed by Judge Edward C. Reed, Jr on 6/6/2011. (Copies have been distributed pursuant to the NEF - KO)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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STEPHEN BARTLETT,
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Petitioner,
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vs.
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NEVIN, et al.,

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Respondents.

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3:11-cv-00349-ECR-VPC
ORDER

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Stephen Bartlett, a Nevada prisoner, has submitted an application to proceed in forma

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pauperis (docket #1), as well as a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254

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(docket #1-1).

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Petitioner’s application to proceed in forma pauperis (docket #1) is granted. 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

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

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

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

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as possible, 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 #1-2).

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There is 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 (9th Cir.1993).

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The decision to appoint counsel is generally discretionary. Chaney v. Lewis, 801 F.2d 1191, 1196 (9th

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Cir.1986), cert. denied, 481 U.S. 1023 (1987); Bashor v. Risley, 730 F.2d 1228, 1234 (9th Cir.), cert.

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denied, 469 U.S. 838 (1984). However, counsel must be appointed if the complexities of the case are

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such that denial 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, 801 F.2d at

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1196; see also Hawkins v. Bennett, 423 F.2d 948 (8th Cir.1970). The petition on file in this action

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appears sufficiently clear in presenting the issues that petitioner wishes to raise. Counsel is not justified

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at this time. The motion is denied without prejudice.

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IT IS THEREFORE ORDERED that petitioner’s application to proceed in forma
pauperis (docket #1) is GRANTED.
IT IS FURTHER ORDERED that the Clerk shall FILE and ELECTRONICALLY
SERVE the petition (docket #1-1) on the respondents.

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

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entry of 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

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

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

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certificate stating the date that a true and correct copy of the document was mailed to the Attorney

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General. The court may disregard any paper that does not include a certificate of service. After

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respondents appear in this action, petitioner shall make such service upon the particular Deputy Attorney

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General assigned to the case.

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IT IS FURTHER ORDERED that the Clerk shall DETACH and FILE petitioner’s
motion for appointment of counsel (docket #1-2).
IT IS FURTHER ORDERED that petitioner’s motion for appointment of counsel
(docket #1-2) is DENIED without prejudice.

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6th
Dated, this ___ day of June, 2011.

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___________________________________
UNITED STATES DISTRICT JUDGE

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