Rodney v. Baker et al

Filing 6

ORDER - Clerk shall file and electronically serve the petition and motion for counsel on respondents (served 9/17/2013). Respondents to answer or otherwise respond to petition within 45 days. If an answer is filed, petitioner shall have 45 days to reply. Petitioner to serve respondents copy of every pleading, motion, or document submitted for consideration by the court. Petitioner shall include with original paper submitted for filing a certificate of mailing. Any state court record exhibits filed by respondents shall be filed with separate index. Hard copy of any additional state court record exhibits shall be forwarded, for this case, to staff attorneys in Reno. The motion for counsel is DENIED. Signed by Chief Judge Robert C. Jones on 09/16/2013. (Copies have been distributed pursuant to the NEF - KR)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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KYLE J. RODNEY,

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Petitioner,

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vs.

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WARDEN BAKER,

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Respondent.

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3:13-cv-00323-RCJ-VPC
ORDER

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Kyle J. Rodney, a prisoner at Ely State Prison, has submitted a pro se petition for writ of habeas
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corpus pursuant to 28 U.S.C. § 2254. Petitioner has paid the filing fee for this action (ECF No. 5). He
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also has submitted a motion for appointment of counsel (ECF No. 1-1). The petition and motion shall
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now be filed and served on respondents.
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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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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, including the proposed amended

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petition.

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IT IS THEREFORE ORDERED that the Clerk shall FILE and ELECTRONICALLY
SERVE the petition and motion for counsel (ECF No. 1 and 1-1) upon the respondents.

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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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IT FURTHER IS ORDERED that any state court record exhibits filed by respondents herein

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shall be filed with a separate index of exhibits identifying the exhibits by number. The CM/ECF

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attachments that are filed shall further be identified by the number or numbers of the exhibits in the

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attachment. The hard copy of any additional state court record exhibits shall be forwarded – for this case

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– to the staff attorneys in Reno.

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

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Dated this 16th day of September, 2013.

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___________________________________
UNITED STATES CHIEF DISTRICT JUDGE

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