Greene v. Baker et al

Filing 3

ORDER. IT IS HEREBY ORDERED that petitioner's application to proceed in forma pauperis is GRANTED. Petitioner shall not be required to pay a filing fee to file his habeas corpus petition. FURTHER ORDERED, the motion for appoint ment of counsel shall be filed and docketed by the Clerk and is denied FURTHER ORDERED, the Clerk shall FILE and ELECTRONICALLY SERVE the petition upon the respondents. (Electronically sent via CM/ECF, see NEFs for ser vice details.) 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 date of service of the answer to file a reply. FURTHER ORDERED, petitioner is provided with filing instructions and requirements for this action. Signed by Chief Judge Robert C. Jones on 12/7/2011. (Copies have been distributed pursuant to the NEF - KO) Modified on 12/8/2011 to add verbiage to the entry regarding motion for appointment of counsel. (KO)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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DELBERT GREENE,

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Petitioner,

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vs.

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RENA BAKER, et al.,

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Respondents.

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3:11-cv-00828-RCJ-VPC
3:11-cv-00850-RCJ-VPC
ORDER

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The petitioner has presented the Court with a motion for appointment of counsel, a

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petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 (received November 17, 2011) and an

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application to proceed in forma pauperis (ECF No. 1).

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The petitioner’s application to proceed in forma pauperis, including the financial

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certificate, establishes that the petitioner qualifies for in forma pauperis status. He shall be granted leave

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to proceed in forma pauperis, and shall not be required to pay the filing fee for his habeas corpus

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petition. The motion for counsel will be ordered filed and docketed. The motion for appointment of

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counsel shall denied.

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There is no constitutional right to appointed counsel for a federal habeas corpus

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proceeding. Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); Bonin v. Vasquez, 999 F.2d 425, 428

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(9th Cir. 1993). The decision to appoint counsel is generally discretionary. Chaney v. Lewis, 801 F.2d

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1191, 1196 (9th Cir. 1986), cert. denied, 481 U.S. 1023 (1987); Bashor v. Risley, 730 F.2d 1228, 1234

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(9th Cir.), cert. denied, 469 U.S. 838 (1984). However, counsel must be appointed if the complexities

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of the case are such that denial of counsel would amount to a denial of due process, and where the

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petitioner is a person of such limited education as to be incapable of fairly presenting his claims. See

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Chaney, 801 F.2d at 1196; see also Hawkins v. Bennett, 423 F.2d 948 (8th Cir. 1970). The claims in

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this case are not especially complex. Also, the Court notes from the state , and from the other documents

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that 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, if he desires. Petitioner’s motion shall be denied.

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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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IT IS THEREFORE ORDERED that petitioner’s application to proceed in forma

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pauperis (ECF No. 1) is GRANTED. Petitioner shall not be required to pay a filing fee to file his

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habeas corpus petition.

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IT IS FURTHER ORDERED that the motion for appointment of counsel shall be filed
and docketed by the Clerk and is denied.
IT IS FURTHER ORDERED that the Clerk shall FILE and ELECTRONICALLY
SERVE the petition (ECF No. 1-1) upon 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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Dated this 7th daydayDecember, 2011.
Dated this ______ of of November, 2011.

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___________________________________
UNITED STATES DISTRICT JUDGE

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