Nichols v. Baca et al

Filing 6

ORDER Motion/Application for Leave to Proceed in forma pauperis 4 is granted. Clerk shall file motion to file oversized petition, motion for evidentiary hearing, and motion for appointment of counsel. Motions denied. Clerk shall send pe titioner a petition for writ of habeas corpus form with instructions (sent via US Mail 8/14/14). Petitioner shall have 30 days to file second amended petition. Signed by Judge Miranda M. Du on 8/14/14. (Copies have been distributed pursuant to the NEF - JC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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COLBERT NICHOLS,

Case No. 3:13-cv-00671-MMD-WGC

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Petitioner,

ORDER

v.
ISIDRO BACA, et al.,

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Respondents.

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Petitioner has submitted an application to proceed in forma pauperis (dkt. no. 4).
The Court finds that petitioner is unable to pay the filing fee.

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Petitioner has submitted an amended petition for a writ of habeas corpus

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pursuant to 28 U.S.C. § 2254 (dkt. no. 5). The Court has reviewed the amended petition

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pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States

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District Courts. Petitioner will need to submit a second amended petition that corrects

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the following defects.

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Ground 1 is a statement of the law regarding ineffective assistance of counsel.

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Petitioner does not allege any facts about how his counsel was ineffective. Rule 2(c) of

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the Rules Governing Section 2254 Cases in the United States District Courts “provides

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that the petition must ‘specify all the grounds for relief available to the petitioner’ and

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‘state the facts supporting each ground.’” Mayle v. Felix, 545 U.S. 644, 655 (2005). In

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the second amended petition, petitioner will need to allege facts indicating that counsel

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provided ineffective assistance.

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Ground 2 actually contains two separate claims of ineffective assistance of

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counsel. First, petitioner alleges that counsel’s cross-examination of an Officer D.T.

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Hosaka was brief, and that counsel “did not pursue numerous avenues of critical

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testimony.” Petitioner has not stated the facts that support this claim, because he has

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not alleged what counsel should have asked Hosaka. Petitioner will need to correct this

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defect in the second amended petition. Second, petitioner alleges in ground 2 that

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counsel gave petitioner poor advice about a plea offer from the prosecution; petitioner

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declined the offer, went to trial, and received a sentence six times greater than what

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was in the offer. Petitioner needs to allege this claim in a separate ground for relief

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because it is distinct from the claim about the cross-examination of Hosaka.

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Ground 3 is a claim that counsel gave petitioner poor advice to testify in his own

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defense, because counsel knew that petitioner was taking mental-health medication

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while at the county jail. Petitioner will need to re-allege this claim in the second

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amended petition, or it will be waived. King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).

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Petitioner submitted a motion to file an oversized petition when he commenced

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this action. The motion is moot because the amended petition (dkt. no. 5) is within the

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Court’s page limits.

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Petitioner has submitted a motion for evidentiary hearing. At this stage of the

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proceedings, the Court cannot conclude that an evidentiary hearing is necessary, and

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the Court denies the motion.

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Petitioner has submitted a motion for appointment of counsel. Whenever the

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court determines that the interests of justice so require, counsel may be appointed to

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any financially eligible person who is seeking habeas corpus relief. 18 U.S.C.

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§ 3006A(a)(2)(B). “[T]he district court must evaluate the likelihood of success on the

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merits as well as the ability of the petitioner to articulate his claims pro se in light of the

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complexity of the legal issues involved.” Weygandt v. Look, 718 F.2d 952 (9th Cir.

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1983). There is no constitutional right to counsel in federal habeas proceedings.

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McCleskey v. Zant, 499 U.S. 467, 495 (1991). The factors to consider are not separate
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from the underlying claims, but are intrinsically enmeshed with them. Weygandt, 718

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F.2d at 954. After reviewing the petition, the court finds that appointment of counsel is

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not warranted.

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It is therefore ordered that the application to proceed in forma pauperis (dkt. no.
4) is granted. Petitioner need not pay the filing fee of five dollars ($5.00).

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It is further ordered that the Clerk of the Court file the motion to file oversized
petition, the motion for evidentiary hearing, and the motion for appointment of counsel.

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It is further ordered that the motion to file oversized petition is denied as moot.

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It is further ordered that the motion for evidentiary hearing is denied.

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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 the Clerk of the Court shall send petitioner a petition for a

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writ of habeas corpus pursuant to 28 U.S.C. § 2254 form with instructions. Petitioner

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shall have thirty (30) days from the date that this order is entered in which to file a

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second amended petition to correct the noted deficiencies. Neither the foregoing

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deadline nor any extension thereof signifies or will signify any implied finding of a basis

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for tolling during the time period established. Petitioner at all times remains responsible

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for calculating the running of the federal limitation period and timely asserting claims.

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Failure to comply with this order will result in the dismissal of Grounds 1 and 2 from this

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action.

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It is further ordered that petitioner shall clearly title the second amended petition

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as such by placing the word “Second Amended” immediately above “Petition for a Writ

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of Habeas Corpus Pursuant to 28 U.S.C. § 2254” on page 1 in the caption, and

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petitioner shall place the docket number, 3:13-cv-00671-MMD-WGC, above the word

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“Amended.”

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DATED THIS 14th day of August 2014.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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