Macias v. Baker et al

Filing 5

ORDER granting ECF No. 1 Motion/Application for Leave to Proceed in forma pauperis; directing Clerk to file and electronically serve petition on respondents; directing respondents to file response to petition within 90 days (see attache d for further details and deadlines); directing parties to send courtesy copies of exhibits to Reno division; directing the Clerk to file motion for appointment of counsel (motion is denied); and denying as moot ECF No. 3 Motion to Extend Time and ECF No. 4 Motion to Withdraw. Signed by Judge Robert C. Jones on 5/6/16. (Copies have been distributed pursuant to the NEF - JC)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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FRANK MACIAS,
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Petitioner,

Case No. 3:15-cv-00461-RCJ-VPC

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vs.

ORDER

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RENEE BAKER, et al.,
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Respondents.
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Petitioner Frank Macias has submitted a pro se petition for a writ of habeas corpus pursuant to
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28 U.S.C. § 2254. The court shall grant his application to proceed in forma pauperis (ECF No. 1). The
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court has reviewed the petition pursuant to Habeas Rule 4, and the petition shall be 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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Also before the court is petitioner’s motion for the appointment of counsel (ECF No. 1-2).
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There is no constitutional right to appointed counsel for a federal habeas corpus proceeding.
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Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); Bonin v. Vasquez, 999 F.2d 425, 428 (9th Cir.1993).
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The decision to appoint counsel is generally discretionary. Chaney v. Lewis, 801 F.2d 1191, 1196 (9th
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Cir.1986), cert. 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). However, counsel must be appointed if the complexities of the case are

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

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

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1196; see also Hawkins v. Bennett, 423 F.2d 948 (8th Cir.1970). The petition on file in this action

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

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not appear to be particularly complex; therefore, counsel is not justified. Petitioner’s motion is denied.

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IT THEREFORE IS ORDERED that petitioner’s application to proceed in forma pauperis

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(ECF No. 1) is GRANTED.
IT FURTHER IS ORDERED that the Clerk shall file and ELECTRONICALLY SERVE the
petition (ECF No. 1-1) on the 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 5.

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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 dismissal

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of unexhausted claims under § 2254(b)(2): (a) they shall do so within the single motion to dismiss not

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in the answer; and (b) they shall specifically direct their argument to the standard for dismissal under §

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2254(b)(2) set forth in Cassett v. Stewart, 406 F.3d 614, 623-24 (9th Cir. 2005). In short, no procedural

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

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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 subject to the normal briefing schedule under the local 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 by

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

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of the exhibits in the attachment.

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

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to the Reno Division of this court. While the Local Rules provide that parties should send paper

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courtesy copies of filings over fifty pages, in this instance, courtesy copies may be in paper form

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or as PDF documents saved to a CD–so long as each PDF is clearly identified by exhibit number.

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Courtesy copies shall be mailed to the Clerk of Court, 400 S. Virginia St., Reno, NV, 89501, and

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

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in the future, all parties shall provide courtesy copies of any additional exhibits submitted to the court

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in this case, in the manner described above.

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IT FURTHER IS ORDERED that the Clerk shall detach and file petitioner’s motion for
appointment of counsel (ECF No. 1-2). The motion for appointment of counsel is DENIED.

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IT FURTHER IS ORDERED that petitioner’s motions for extension of time to file his

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application to proceed in forma pauperis (ECF No. 3) and motion to withdraw motion for extension of

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time (ECF No. 4) are both DENIED as moot.

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DATED:this ___ day of April, 2016.
Dated, This 6th day of May, 2016.
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UNITED STATES DISTRICT JUDGE

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