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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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 DISTRICT OF NEVADA 7 8 ASHTON E. CACHO, 9 Petitioner, 10 vs. 11 12 ROBERT LEGRAND, et al., 13 Respondents. ) ) ) ) ) ) ) ) ) ) / 3:12-cv-00171-RCJ-WGC ORDER 14 15 Ashton Cacho, a Nevada prisoner, has submitted an application to proceed in forma 16 pauperis (ECF #1), as well as a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254 (ECF 17 #1-1). 18 19 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. 20 A petition for federal habeas corpus should include all claims for relief of which 21 petitioner is aware. If petitioner fails to include such a claim in his petition, he may be forever barred 22 from seeking federal habeas relief upon that claim. See 28 U.S.C. §2254(b) (successive petitions). If 23 petitioner is aware of any claim not included in his petition, he should notify the court of that as soon 24 as possible, perhaps by means of a motion to amend his petition to add the claim. 25 Petitioner has also submitted a motion for the appointment of counsel (ECF #1-2). There 26 is no constitutional right to appointed counsel for a federal habeas corpus proceeding. Pennsylvania v. 1 Finley, 481 U.S. 551, 555 (1987); Bonin v. Vasquez, 999 F.2d 425, 428 (9th Cir.1993). The decision to 2 appoint counsel is generally discretionary. Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir.1986), cert. 3 denied, 481 U.S. 1023 (1987); Bashor v. Risley, 730 F.2d 1228, 1234 (9th Cir.), cert. denied, 469 U.S. 4 838 (1984). However, counsel must be appointed if the complexities of the case are such that denial of 5 counsel would amount to a denial of due process, and where the petitioner is a person of such limited 6 education as to be incapable of fairly presenting his claims. See Chaney, 801 F.2d at 1196; see also 7 Hawkins v. Bennett, 423 F.2d 948 (8th Cir.1970). The petition on file in this action appears sufficiently 8 clear in presenting the issues that petitioner wishes to raise. Counsel is not justified at this time. The 9 motion is denied without prejudice. 10 11 12 13 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. 14 IT IS FURTHER ORDERED that respondents shall have forty-five (45) days from 15 entry of this order within which to answer, or otherwise respond to, the petition. In their answer or other 16 response, respondents shall address any claims presented by petitioner in his petition as well as any 17 claims presented by petitioner in any Statement of Additional Claims. Respondents shall raise all 18 potential affirmative defenses in the initial responsive pleading, including lack of exhaustion and 19 procedural default. Successive motions to dismiss will not be entertained. If an answer is filed, 20 respondents shall comply with the requirements of Rule 5 of the Rules Governing Proceedings in the 21 United States District Courts under 28 U.S.C. §2254. If an answer is filed, petitioner shall have forty- 22 five (45) days from the date of service of the answer to file a reply. 23 IT IS FURTHER ORDERED that, henceforth, petitioner shall serve upon the Attorney 24 General of the State of Nevada a copy of every pleading, motion, or other document he submits for 25 consideration by the court. Petitioner shall include with the original paper submitted for filing a 26 2 1 certificate stating the date that a true and correct copy of the document was mailed to the Attorney 2 General. The court may disregard any paper that does not include a certificate of service. After 3 respondents appear in this action, petitioner shall make such service upon the particular deputy attorney 4 general assigned to the case. 5 IT FURTHER IS ORDERED that any state court record exhibits filed by respondents 6 herein shall be filed with a separate index of exhibits identifying the exhibits by number or letter. The 7 CM/ECF attachments that are filed further shall be identified by the number or numbers (or letter or 8 letters) of the exhibits in the attachment. The hard copy of any additional state court record exhibits 9 shall be forwarded – for this case – to the staff attorneys in Reno. 10 11 12 13 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. 14 15 Dated this ___ day of May, 2012. Dated, this 7th day of June, 2012. 16 17 18 ___________________________________ UNITED UNITED DISTRICT JUDGE JUDGE CHIEF STATES STATES DISTRICT 19 20 21 22 23 24 25 26 3

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