Olsen v. LeGrand et al

Filing 20

ORDER - Clerk shall send P 2254 form and instructions. Clerk will also send Petitioner a copy of ECF No. 1 -1 petition and attachments. (Form and docs mailed 7/21/2017.) Amended petition due by 8/19/2017. Petitioner's motion for the appoint ment of counsel (ECF No. 14 ) is denied without prejudice to filing a new motion for counsel with his amended petition. Signed by Judge Miranda M. Du on 7/20/2017. (Copies have been distributed pursuant to the NEF - DRM) Modified on 7/20/2017 to correct mailing date (DRM).

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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CARL HENRY OLSEN, III,

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Case No. 3:15-cv-00367-MMD-WGC
Petitioner,

ORDER

v.
ROBERT LeGRAND, et al.,
Respondents.

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This action is a pro se petition for a writ of habeas corpus filed pursuant to 28

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U.S.C. § 2254 by a Nevada state prisoner. On July 12, 2016, the Court dismissed the

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petition as successive. (ECF Nos. 5 & 6.) Petitioner appealed. (ECF No. 8.) On January

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11, 2017, the United States Court of Appeals for the Ninth Circuit vacated the dismissal

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because the petitioner’s prior case, filed as CV-S-91-610-PMP-RJJ, was dismissed

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without prejudice due to lack of exhaustion. (ECF No. 18.) The Court of Appeals

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remanded this case for further proceedings. (Id.) The Court of Appeals issued its

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mandate on July 6, 2017. (ECF No. 17.)

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This Court has conducted a preliminary review of the petition pursuant to Rule 4

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of the Rules Governing Section 2254 Cases in the United States District Courts. The

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petition contains four grounds for relief. Petitioner failed to write a heading at the top of

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each ground indicating the nature of the claim. In each ground, petitioner seeks to

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incorporate by reference certain “grounds” found within the “Appendix (App. I).” (ECF

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No. 1-1 at 3, 5, 7 and 9.) Other than Ground I, petitioner includes no description or detail

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of what constitutional rights he claims were violated in connection with his conviction

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and sentence. (ECF No. 1-1 at 3-10.)

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Petitioner’s attempt to incorporate grounds by reference to the appendix is

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problematic, because there is no actual “appendix” attached to the petition or otherwise

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submitted with the petition in this case. For example, the Court cannot discern what

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material or portion of the record petitioner refers to when he states that he “incorporates

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by reference Appendix (App.) 1, Ground 1.” (ECF No. 1-1 at 3.) There are many

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documents attached to the petition. (ECF No. 1-1 at 12-225.) The documents are in no

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particular order, some documents are not labeled, and there is no table of contents or

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index of the documents. (Id.) The documents consist of at least part of the state court

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record from petitioner’s conviction and appeals. (Id.)

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The Court recognizes that a habeas petitioner may incorporate a document into

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the petition by attaching such document to the petition pursuant to Rule 10(c) of the

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Federal Rules of Civil Procedure. See Dye v. Hofbauer, 546 U.S. 1, 4 (2005) (holding

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that Fed. R. Civ. P. 10(c) applies to federal habeas corpus proceedings, such that

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exhibits to the pleading are considered part of the pleading). However, petitioner in this

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case has not specified which part or parts of the many documents attached to the

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petition he intends to incorporate as actual grounds within his petition. Because the

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petition is vague and ambiguous in its current form, petitioner must submit an amended

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petition. To the extent that petitioner seeks to incorporate grounds or claims by

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reference, he must specify the document and relevant page numbers. Petitioner must

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also include a heading for each ground of the amended petition, which must indicate the

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nature of each ground.

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In addition, petitioner has filed a motion for the appointment of counsel. (ECF No.

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14.) Petitioner has no constitutional right to appointed counsel in a federal habeas

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

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999 F.2d 425, 428 (9th Cir. 1993). The decision to appoint counsel is within the Court’s

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discretion. Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986), cert. denied, 481 U.S.
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1023 (1987); Bashor v. Risley, 730 F.2d 1228, 1234 (9th Cir.), cert. denied, 469 U.S.

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838 (1984). The petition in its current form contains only four grounds. The Court cannot

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determine the complexity of the grounds until petitioner files an amended petition with

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clear headings and meaningful reference to any grounds he seeks to incorporate by

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reference from the state court record. Therefore, petitioner’s motion for counsel is

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denied without prejudice to renewing his motion once he files an amended petition.

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It is therefore ordered that the Clerk of Court send petitioner a copy of the Court’s

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approved form for filing a petition for a writ of habeas corpus pursuant to 28 U.S.C. §

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2254, including a copy of the instructions for filing the same. The Clerk will also send

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petitioner a copy of the petition and attachments submitted in this action (ECF No. 1-1.)

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It is further ordered that within thirty (30) days from the date of entry of this order,

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petitioner must file an amended petition on the Court’s approved form. The amended

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petition must be filed on the Court’s approved habeas corpus form and must be entitled

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“First Amended Petition.” To the extent petitioner seeks to incorporate portions of state

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court documents into his federal petition, he will attach such document(s) and refer to

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the specific portions of the documents he seeks to incorporate by page number and line

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number.

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It is further ordered that petitioner’s motion for the appointment of counsel (ECF

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No. 14) is denied without prejudice to filing a new motion for counsel with his amended

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petition.

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It is further ordered that failure to comply with this order may result in dismissal
of this action.
DATED THIS 20th day of July 2017.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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