Noguera v. Smith et al

Filing 5

ORDERED Clerk shall FILE and E-serve the petition (# 1 -1) and the motion for appointment of counsel (# 1 -2) upon Rs. ( E-service of Order, Petition, and Motion, upon AG performed on 7/19/2011 ) FURTHER ORD the motion for appointment of counsel is DENIED. FURTHER ORD Rs' answer/response to petition due by 9/2/2011. FURTHER ORD henceforth P shall serve AG with a copy of every document submitted for consideration by the Court. Signed by Judge Larry R. Hicks on 7/19/2011. (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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CARLOS NOGUERA,

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Petitioner,

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vs.

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GREG SMITH, et al.,

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Respondents.

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3:11-cv-00428-LRH-RAM
ORDER

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Petitioner Carlos Noguera a prisoner at Nevada State Prison, has filed a pro se petition for writ

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of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner has paid the filing fee for this action. (ECF

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No. 4). The petition shall now be filed and served on 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 appointment of counsel (ECF No. 1-2), arguing that

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his long sentence and his inability to speak or understand the English language and the legal proceedings

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supports appointment of counsel.

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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 claims in this case are not

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especially complex. Also, the Court notes from the petition, and from the other documents that

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petitioner has submitted to the Court, that petitioner is able to present matters to the Court in an

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organized and understandable manner. Petitioner’s motion shall be denied.

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IT IS THEREFORE ORDERED that the Clerk shall FILE and ELECTRONICALLY

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SERVE the petition (ECF No. 1-1) and the motion for appointment of counsel (ECF No. 1-2) upon the

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respondents.

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IT IS FURTHER ORDERED that the motion for appointment of counsel is DENIED.

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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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Dated this 19th day of July, 2011.

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___________________________________
LARRY R. HICKS
UNITED STATES DISTRICT JUDGE