Christensen v. Baca et al

Filing 11

ORDER Clerk shall electronically serve amended petition 9 on respondents. Respondents shall have 60 days to answer or otherwise respond to amended petition. Henceforth, petitioner shall serve upon AG copy of all pleadings submitted to the court. Hard copy of state court record exhibits shall be forwarded - for this case - to staff attorneys in Reno. Motions for appointment of counsel 8 and 10 are denied without prejudice. Signed by Judge Robert C. Jones on 11/19/14. (Copies have been distributed pursuant to the NEF - JC)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

8
9
10

DEREK CHRISTENSEN,
11
Petitioner,

Case No. 3:14-cv-00157-RCJ-VPC

12
vs.

ORDER

13
ISIDRO BACA, et al.,
14
Respondents.
15
16
17
18
19

Derek Christensen, a Nevada prisoner, has submitted an amended petition for a writ of habeas

20

corpus, pursuant to 28 U.S.C. § 2254 (#9). The court has reviewed the amended petition pursuant to

21

Rule 4 of the Rules Governing Habeas Cases, and the amended petition shall be served upon the

22

respondents.

23

A petition for federal habeas corpus should include all claims for relief of which petitioner is

24

aware. If petitioner fails to include such a claim in his petition, he may be forever barred from seeking

25

federal habeas relief upon that claim. See 28 U.S.C. §2254(b) (successive petitions). If petitioner is

26

aware of any claim not included in his petition, he should notify the court of that as soon as possible,

27

perhaps by means of a motion to amend his petition to add the claim.

28

1

Also before the court is petitioner’s motion for the appointment of counsel (#8) and

2

supplemental motion for appointment of counsel (#10). There is no constitutional right to appointed

3

counsel for a federal habeas corpus proceeding. Pennsylvania v. Finley, 481 U.S. 551, 555 (1987);

4

Bonin v. Vasquez, 999 F.2d 425, 428 (9th Cir.1993). The decision to appoint counsel is generally

5

discretionary. Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir.1986), cert. denied, 481 U.S. 1023

6

(1987); Bashor v. Risley, 730 F.2d 1228, 1234 (9th Cir.), cert. denied, 469 U.S. 838 (1984). However,

7

counsel must be appointed if the complexities of the case are such that denial of counsel would amount

8

to a denial of due process, and where the petitioner is a person of such limited education as to be

9

incapable of fairly presenting his claims. See Chaney, 801 F.2d at 1196; see also Hawkins v. Bennett,

10

423 F.2d 948 (8th Cir.1970). The amended petition on file in this action appears sufficiently clear in

11

presenting the issues that petitioner wishes to raise, and therefore, counsel is not justified. Petitioner’s

12

motion is denied without prejudice.

13
14

IT IS THEREFORE ORDERED that the Clerk shall ELECTRONICALLY SERVE the
amended petition (# 9) on the respondents.

15

IT IS FURTHER ORDERED that respondents shall have sixty (60) days from entry of this

16

order within which to answer, or otherwise respond to, the amended petition. In their answer or other

17

response, respondents shall address any claims presented by petitioner in his petition as well as any

18

claims presented by petitioner in any Statement of Additional Claims. Respondents shall raise all

19

potential affirmative defenses in the initial responsive pleading, including lack of exhaustion and

20

procedural default. Successive motions to dismiss will not be entertained. If an answer is filed,

21

respondents shall comply with the requirements of Rule 5 of the Rules Governing Proceedings in the

22

United States District Courts under 28 U.S.C. §2254. If an answer is filed, petitioner shall have forty-

23

five (45) days from the date of service of the answer to file a reply.

24

IT IS FURTHER ORDERED that, henceforth, petitioner shall serve upon the Attorney

25

General of the State of Nevada a copy of every pleading, motion, or other document he submits for

26

consideration by the court. Petitioner shall include with the original paper submitted for filing a

27

certificate stating the date that a true and correct copy of the document was mailed to the Attorney

28

General. The court may disregard any paper that does not include a certificate of service. After
-2-

1

respondents appear in this action, petitioner shall make such service upon the particular Deputy

2

Attorney General assigned to the case.

3

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

4

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

5

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

6

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

7

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

8
9

IT IS FURTHER ORDERED that petitioner’s motion for appointment of counsel (#8) and
supplemental motion for appointment of counsel (#10) are both DENIED without prejudice.

10
11

Dated: This 19th day of November, 2014.
Dated, this ___ day of November, 2014.

12
13

___________________________________
UNITED STATES DISTRICT JUDGE

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-3-