Patterson v. State of Nevada et al

Filing 6

ORDER Clerk shall file and e-serve petition 1 -1 on respondents. Clerk shall replace caption page with corrected caption page 5 . Respondents shall have 90 days to file response to petition. Courtesy copies of state court record exhibits shall be mailed to staff attorney in Reno. Clerk shall detach and file motion for appointment of counsel 1 -2. Motion is denied. Please see attached for additional details and deadlines. Signed by Judge Howard D. McKibben on 12/31/15. (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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***

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DEMEITRUS PATTERSON,

Case No. 3:15-cv-00392-HDM-WGC
Plaintiff,

ORDER

v.
BRIAN WILLIAMS, et al.,
Defendants.

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Before the court is a pro se petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254, submitted by Demeitrus Patterson, a Nevada state prisoner (ECF No. 11). He has now paid the filing fee (see ECF No. 4). The court has reviewed the petition
pursuant to Habeas Rule 4 and it shall be docketed and served on respondents.
A petition for federal habeas corpus should include all claims for relief of which
petitioner is aware. If petitioner fails to include such a claim in his petition, he may be
forever barred from seeking federal habeas relief upon that claim.

See 28 U.S.C.

§2254(b) (successive petitions). If petitioner is aware of any claim not included in his
petition, he should notify the court of that as soon as possible, perhaps by means of a
motion to amend his petition to add the claim.
Patterson has also submitted a motion for appointment of counsel (ECF No. 1-2).
There is no constitutional right to appointed counsel for a federal habeas corpus
proceeding. Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); Bonin v. Vasquez, 999
F.2d 425, 428 (9th Cir.1993).

The decision to appoint counsel is generally

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

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are such that denial of counsel would amount to a denial of due process, and where the

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petitioner is a person of such limited education as to be incapable of fairly presenting his

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claims. See Chaney, 801 F.2d at 1196; see also Hawkins v. Bennett, 423 F.2d 948 (8th

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Cir.1970). Here, Patterson’s petition appears sufficiently clear in presenting the issues

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that he wishes to raise, and the legal issues do not appear to be particularly complex.

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Therefore, counsel is not justified. Patterson’s motion is denied.

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IT IS THEREFORE ORDERED that the Clerk shall file and ELECTRONICALLY
SERVE the petition (ECF No. 1-1) on the respondents.

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IT IS FURTHER ORDERED that the Clerk shall replace the caption page of the

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petition at ECF No. 1-1 with the corrected caption page that is currently docketed as

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ECF No. 5. The Clerk shall correct the case caption accordingly.

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

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including potentially by motion to dismiss, within ninety (90) days of service of the

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petition, with any requests for relief by petitioner by motion otherwise being subject to

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the normal briefing schedule under the local rules.

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with the remaining provisions below, which are entered pursuant to Habeas Rule 5.

Any response filed shall comply

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IT IS FURTHER ORDERED that any procedural defenses raised by respondents

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in this case shall be raised together in a single consolidated motion to dismiss. In other

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words, the court does not wish to address any procedural defenses raised herein either

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in seriatum fashion in multiple successive motions to dismiss or embedded in the

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answer. Procedural defenses omitted from such motion to dismiss will be subject to

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potential waiver. Respondents shall not file a response in this case that consolidates

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their procedural defenses, if any, with their response on the merits, except pursuant to
28 U.S.C. § 2254(b)(2) as to any unexhausted claims clearly lacking merit.

If

respondents do seek dismissal of unexhausted claims under § 2254(b)(2): (a) they shall
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do so within the single motion to dismiss not in the answer; and (b) they shall

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specifically direct their argument to the standard for dismissal under § 2254(b)(2) set

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forth in Cassett v. Stewart, 406 F.3d 614, 623-24 (9th Cir. 2005).

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procedural defenses, including exhaustion, shall be included with the merits in an

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answer.

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motion to dismiss.

In short, no

All procedural defenses, including exhaustion, instead must be raised by

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

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

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

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IT IS FURTHER ORDERED that petitioner shall have forty-five (45) days from

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service of the answer, motion to dismiss, or other response to file a reply or opposition,

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with any other requests for relief by respondents by motion otherwise being subject to

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the normal briefing schedule under the local rules.

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

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herein by either petitioner or respondents shall be filed with a separate index of exhibits

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identifying the exhibits by number. The CM/ECF attachments that are filed further shall

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be identified by the number or numbers of the exhibits in the attachment.

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IT IS FURTHER ORDERED that the parties SHALL SEND courtesy copies of all

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exhibits to the Reno Division of this court. While the Local Rules provide that parties

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should send paper courtesy copies of filings over fifty pages, in this instance,

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courtesy copies may be in paper form or as PDF documents saved to a CD–so

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long as each PDF is clearly identified by exhibit number. Courtesy copies shall be

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mailed to the Clerk of Court, 400 S. Virginia St., Reno, NV, 89501, and directed to the

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attention of “Staff Attorney” on the outside of the mailing address label. Additionally, in

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the future, all parties shall provide courtesy copies of any additional exhibits submitted
to the court in this case, in the manner described above.

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IT IS FURTHER ORDERED that the Clerk shall detach and file petitioner’s

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motion for appointment of counsel (ECF No. 1-2).

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counsel is DENIED.

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The motion for appointment of

DATED: December 31, 2015..

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HOWARD D. MCKIBBEN
UNITED STATES DISTRICT JUDGE

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