Boney v. Smith et al

Filing 5

ORDER IFP application 1 is granted. Clerk will file and electronically serve petition 1 -1 upon respondents (served via NEF 10/22/2015). Clerk shall add AG to docket. Respondents will have 45 days to answer or otherwise respond. Hard c opy of state court record exhibits must be forwarded to staff attorneys in Reno. Motion for appointment of counsel 1 -2 is denied. Henceforth, petitioner must serve upon AG copy of every pleading, motion, or other document submitted to the Court. Signed by Judge Miranda M. Du on 10/22/15. (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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WILLIAM D. BONEY,

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Case No. 3:15-cv-00193-MMD-WGC
Petitioner,

ORDER

v.
GREGORY SMITH, et al.,
Respondents.
This action is a pro se petition for a writ of habeas corpus filed pursuant to 28
U.S.C. § 2254 by a Nevada state prisoner.

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Petitioner has filed a motion to proceed in forma pauperis. (Dkt. no. 1.) Based on

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the information regarding petitioner's financial status, the Court finds that the motion to

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proceed in forma pauperis should be granted. The Court has reviewed the habeas

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petition, and it will be filed and served on respondents.

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Petitioner has filed a motion for the appointment of counsel. (Dkt. no. 1-2.)

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Pursuant to 18 U.S.C. § 3006A(2)(B), the district court has discretion to appoint counsel

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when it determines that the “interests of justice” require representation in a habeas

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corpus case. Petitioner has no constitutional right to appointed counsel in a federal

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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 within

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the Court’s discretion. Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986), cert.

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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). The petition on file in this action is well-written and

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sufficiently clear in presenting the issues that petitioner wishes to bring. The issues in

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this case are not complex. Counsel is not justified in this instance. Petitioner’s motion

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for the appointment of counsel is denied.

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It is therefore ordered that the application to proceed in forma pauperis (dkt. no.
1) is granted.

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It is further ordered that the Clerk will file and electronically serve the petition

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(dkt. no. 1-1) upon the respondents. The Clerk of Court will add attorney General Adam

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Paul Laxalt to the CM/ECF docket sheet.

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It is further ordered that respondents will 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

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or other response, respondents must address all claims presented in the petition.

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Respondents must raise all potential affirmative defenses in the initial responsive

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pleading, including lack of exhaustion and procedural default. Successive motions to

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dismiss will not be entertained. If an answer is filed, respondents must comply with the

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requirements of Rule 5 of the Rules Governing Proceedings in the United States District

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Courts under 28 U.S.C. § 2254. If an answer is filed, petitioner will have forty-five (45)

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days from the date of service of the answer to file a reply.

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It is further ordered that any state court record exhibits filed by respondents must

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

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hard copy of all state court record exhibits must be forwarded, for this case, to the staff

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attorneys in the Reno Division of the Clerk of Court.

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It is further ordered that petitioner’s motion for the appointment of counsel (dkt.
no. 1-2) is denied.

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It is further ordered that, henceforth, petitioner must serve upon the Attorney

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

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submits for consideration by the Court. Petitioner must include with the original paper

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submitted for filing a certificate stating the date that a true and correct copy of the

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document was mailed to the Attorney General. The Court may disregard any paper that
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does not include a certificate of service. After respondents appear in this action,

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petitioner must make such service upon the particular Deputy Attorney General

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assigned to the case.

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DATED THIS 22nd day of October 2015.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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