Recktenwald v. Neven et al

Filing 4

ORDER IFP Application 1 is granted. Clerk shall file and electronically serve petition 1 -1 on respondents (served via NEF 4/30/15). Respondents shall file response within 90 days. Any additional state court record exhibit shall be forwarded to staff attorneys in Reno. Clerk shall file motion for appointment of counsel 1 -3. Motion is denied. Clerk shall file motion to extend copywork 1 -2. Motion is granted (copy of order sent to NDOC). Petitioner granted an additional $50 in credit to be used in this proceeding only. Motion to transfer case to Las Vegas 3 is denied. Signed by Judge Robert C. Jones on 4/30/15. (Copies have been distributed pursuant to the NEF - JC)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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PAUL RECKTENWALD,
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Petitioner,

Case No. 3:15-cv-00187-RCJ-VPC

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vs.

ORDER

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DWIGHT NEVEN, et al.,
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Respondents.
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Before the court is a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254,

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filed by a Nevada prisoner (ECF #1-1). Petitioner’s application to proceed in forma pauperis (ECF #1)

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is granted. The court has reviewed the petition pursuant to Habeas Rule 4, and the petition shall be

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docketed and served.

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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.

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Petitioner has also submitted a motion for appointment of counsel (ECF #1-3). There is no

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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

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

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

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U.S. 838 (1984). However, counsel must be appointed if the complexities of the case are such that

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denial of counsel would amount to a denial of due process, and where the petitioner is a person of such

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limited education as to be incapable of fairly presenting his claims. See Chaney, 801 F.2d at 1196; see

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also Hawkins v. Bennett, 423 F.2d 948 (8th Cir. 1970). Here, the court notes that petitioner is serving

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at least three consecutive life sentences with the possibility of parole. However, the petition in this

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action appears sufficiently clear in presenting the issues that petitioner wishes to raise, and the legal

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issues do not appear to be particularly complex; therefore, counsel is not justified. Accordingly,

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petitioner’s motion for appointment of counsel is denied.

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Finally, the court considers petitioner’s motion to extend the prison copywork limit (ECF #1-2).

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A court may order a prison to provide limited photocopying when it is necessary for an inmate to

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provide copies to the court and other parties. See, e.g., Allen v. Clark County Detention Center, 2011

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WL 886343, at * 2 (D. Nev. March 11, 2011). As petitioner will have an opportunity to respond to

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or oppose respondents’ response to his petition, petitioner’s motion is granted. However, petitioner asks

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for $400 in copywork, with no explanation whatsoever, and this the court will not grant such a large

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sum. Petitioner shall be granted an additional $50 in credit for copywork to be used in this habeas

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proceeding only.

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IT THEREFORE IS ORDERED that petitioner’s application to proceed in forma pauperis
(ECF #1) is GRANTED.
IT FURTHER IS ORDERED that the Clerk shall FILE and ELECTRONICALLY SERVE
the petition (ECF #1-1) on respondents.

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IT FURTHER IS ORDERED that respondents shall file a response to the petition, including

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potentially by motion to dismiss, within ninety (90) days of service of the petition, with any requests

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for relief by petitioner by motion otherwise being subject to the normal briefing schedule under the local

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rules. Any response filed shall comply with the remaining provisions below, which are entered

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pursuant to Habeas Rule 4.
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IT FURTHER IS ORDERED that any procedural defenses raised by respondents in this case

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shall be raised together in a single consolidated motion to dismiss. In other words, the court does not

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wish to address any procedural defenses raised herein either in seriatum fashion in multiple successive

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motions to dismiss or embedded in the answer. Procedural defenses omitted from such motion to

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dismiss will be subject to potential waiver. Respondents shall not file a response in this case that

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consolidates their procedural defenses, if any, with their response on the merits, except pursuant to 28

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U.S.C. § 2254(b)(2) as to any unexhausted claims clearly lacking merit. If respondents do seek

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dismissal of unexhausted claims under § 2254(b)(2): (a) they shall do so within the single motion to

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dismiss not in the answer; and (b) they shall specifically direct their argument to the standard for

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dismissal under § 2254(b)(2) set forth in Cassett v. Stewart, 406 F.3d 614, 623-24 (9th Cir. 2005). In

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short, no procedural defenses, including exhaustion, shall be included with the merits in an answer. All

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procedural defenses, including exhaustion, instead must be raised by motion to dismiss.

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IT FURTHER IS ORDERED that, in any answer filed on the merits, respondents shall

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specifically cite to and address the applicable state court written decision and state court record

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materials, if any, regarding each claim within the response as to that claim.

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IT FURTHER IS ORDERED that petitioner shall have thirty (30) days from service of the

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answer, motion to dismiss, or other response to file a reply or opposition, with any other requests for

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relief by respondents by motion otherwise being subject to the normal briefing schedule under the local

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rules.

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

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either petitioner or respondents shall be filed with a separate index of exhibits identifying the exhibits

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by number. The CM/ECF attachments that are filed further shall be identified by the number or

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numbers 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 FURTHER IS ORDERED that the Clerk shall DETACH and FILE petitioner’s motion
for appointment of counsel (ECF #1-3).
IT FURTHER IS ORDERED that petitioner’s motion for appointment of counsel (ECF #1-3)
is DENIED.
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IT FURTHER IS ORDERED that the Clerk shall DETACH and FILE petitioner’s motion
to extend copywork limit (ECF #1-2)

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IT FURTHER IS ORDERED that petitioner’s motion to extend copywork limit (ECF #1-2)

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is GRANTED. Petitioner shall be granted an additional $50 in credit for copywork to be used in this

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habeas proceeding only.

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IT FURTHER IS ORDERED that petitioner’s motion to transfer case to Las Vegas (ECF #3)
is DENIED.
DATED: This 30th day of April, 2015.

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___________________________________
UNITED STATES DISTRICT JUDGE

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