Recktenwald v. Neven et al

Filing 67

ORDER Motion for appointment of counsel 27 is granted. FPD is appointed to represent petitioner. Clerk shall electronically serve FPD copy of this order and copy of petition 5 (served via NEF). FPD shall have 30 days to file a no tice of appearance or indicate inability to do so.Motion to extend copywork limit 47 , motions for appointment of counsel 50 and 55 , and motion for sanctions 62 are denied as moot. Motion to extend time 24 is granted nun c pro tunc.Motion to strike 34 proposed order 33 is granted.Motion to dismiss 35 is denied without prejudice to renew. Motion to strike 60 is denied as moot. Signed by Judge Robert C. Jones on 11/9/15. (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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This pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 is before the court
on petitioner Recktenwald’s motion for appointment of counsel (ECF No. 27).

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As the court has previously explained, there is no constitutional right to appointed counsel for

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

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

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Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986), cert. denied, 481 U.S. 1023 (1987); Bashor v.

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

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Here, the court previously denied petitioner’s motion for counsel. The court is not necessarily

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persuaded by petitioner’s continued protestations that the complexity of his case, the limits of the prison

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law library paging system and his mental limitations warrant counsel. Based on earlier filings, the court

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discerned that petitioner was serving consecutive life sentences with the possibility of parole. However,

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respondents subsequently filed copies of Recktenwald’s sentencing hearing transcript and judgment of

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conviction, which have now demonstrated to this court that petitioner is serving multiple terms of life

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in prison without the possibility of parole. Thus, the court concludes that counsel is justified to ensure

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due process. See Chaney, 801 F.2d at 1196; see also Hawkins v. Bennett, 423 F.2d 948 (8th Cir. 1970).

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Accordingly, counsel shall be appointed to represent petitioner.

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In light of the appointment of counsel, petitioner’s pro se motions for an evidentiary hearing and

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discovery, for extension of the copywork limit, and for sanctions shall be denied as moot. Petitioner

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also filed a proposed order on default, arguing that respondents failed to respond to his petition (ECF

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No. 33). In fact, respondents timely responded (see ECF Nos. 24, 34, 35). Therefore, this court shall

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grant respondents’ motion to strike the proposed order (ECF No. 34). Finally, respondents’ motion to

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dismiss (ECF No. 35) shall be denied without prejudice to renew the motion after the filing of any

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amended petition.

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IT IS THEREFORE ORDERED that petitioner’s motion for appointment of counsel (ECF
No. 27) is GRANTED.
IT IS FURTHER ORDERED that the Federal Public Defender for the District of Nevada
(“FPD”) is appointed to represent petitioner.

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IT IS FURTHER ORDERED that the Clerk shall ELECTRONICALLY SERVE the FPD

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a copy of this order, together with a copy of the petition for writ of habeas corpus (ECF No. 5). The

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FPD shall have thirty (30) days from the date of entry of this order to file a notice of appearance or to

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indicate to the court its inability to represent petitioner in these proceedings.

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IT IS FURTHER ORDERED that, after counsel has appeared for petitioner in this case, the

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court will issue a scheduling order, which will, among other things, set a deadline for the filing of a first

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amended petition, if any.

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IT IS FURTHER ORDERED that the following motions filed by petitioner: motion to extend

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prison copywork limit (ECF No. 47); motion for appointment of counsel (ECF No. 50); ex parte motion

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for appointment of counsel and request for evidentiary hearing (ECF No. 55); and motion for sanctions

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(ECF No. 62) are all DENIED as moot.

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IT IS FURTHER ORDERED that respondents’ motion to extend time (ECF No. 24) is
GRANTED nunc pro tunc.
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IT IS FURTHER ORDERED that respondents’ motion to strike (ECF No. 34) is GRANTED.
The Clerk SHALL STRIKE the proposed order on default judgment at ECF No. 33.
IT IS FURTHER ORDERED that respondents’ motion to dismiss (ECF No. 35) is DENIED
WITHOUT PREJUDICE to renew.
IT IS FURTHER ORDERED that respondents’ motion to strike surreply (ECF No. 60) is
DENIED as moot.

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DATED: This 9th day of November, 2015.
Dated, this ___ day of October, 2015.

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___________________________________
UNITED STATES DISTRICT JUDGE

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