Cacho v. LeGrand et al

Filing 3

ORDERED that P's # 1 IPF application is GRANTED. FURTHER ORD the Clerk shall FILE and E- SERVE the petition (ECF # 1 -1) on the Rs. ( E-service of order and petition on 6/7/2012 upon filing; Copy mailed to P.) FURTHER ORD Rs' answer due b y 7/22/2012; and reply due 45 days from service of answer. FURTHER ORD henceforth P shall serve Rs a copy of every document submitted, together with a certificate of service. FURTHER ORD any state court record exhibits filed by Rs shall be filed as s pecified herein. FURTHER ORD that the Clerk shall DETACH and FILE P's motion for counsel (ECF # 1 -2). FURTHER ORD that P's motion for counsel is DENIED without prejudice. Signed by Chief Judge Robert C. Jones on 6/7/2012. (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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ASHTON E. CACHO,
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Petitioner,
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vs.
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ROBERT LEGRAND, et al.,

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Respondents.

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3:12-cv-00171-RCJ-WGC
ORDER

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Ashton Cacho, a Nevada prisoner, has submitted an application to proceed in forma

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

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#1-1).

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Petitioner’s application to proceed in forma pauperis (ECF #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 (ECF #1-2). There

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is no constitutional right to appointed counsel for a federal habeas corpus proceeding. Pennsylvania v.

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

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

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

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838 (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 on file in this action appears sufficiently

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

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motion is denied without prejudice.

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IT IS THEREFORE ORDERED that petitioner’s application to proceed in forma
pauperis (ECF #1) is GRANTED.
IT IS FURTHER ORDERED that the Clerk shall FILE and ELECTRONICALLY
SERVE the petition (ECF #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 FURTHER IS ORDERED that any state court record exhibits filed by respondents

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herein shall be filed with a separate index of exhibits identifying the exhibits by number or letter. The

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CM/ECF attachments that are filed further shall be identified by the number or numbers (or letter or

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letters) of the exhibits in the attachment. The hard copy of any additional state court record exhibits

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shall be forwarded – for this case – to the staff attorneys in Reno.

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

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Dated this ___ day of May, 2012.
Dated, this 7th day of June, 2012.

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___________________________________
UNITED UNITED DISTRICT JUDGE JUDGE
CHIEF STATES STATES DISTRICT

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