Kirk v. Nevada Department of Corrections et al

Filing 26

ORDER denying without prejudice Petitioner's ECF No. 24 Motion to Appoint Counsel; giving Petitioner 14 days to file supported, renewed motion. Signed by Judge Miranda M. Du on 4/20/2017. (Copies have been distributed pursuant to the NEF - KR)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 *** 9 DEREK LOWELL KIRK, Case No. 3:16-cv-00079-MMD-VPC 10 Petitioner, ORDER v. 11 12 13 NEVADA DEPARTMENT OF CORRECTIONS, et al., Respondents. 14 15 16 Before the Court is pro se habeas petitioner Derek Lowell Kirk’s third motion for appointment of counsel (ECF No. 24). 17 As this Court previously explained, there is no constitutional right to appointed 18 counsel for a federal habeas corpus proceeding. Pennsylvania v. Finley, 481 U.S. 551, 19 555 (1987); Bonin v. Vasquez, 999 F.2d 425, 428 (9th Cir.1993). The decision to appoint 20 counsel is generally discretionary. Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir.1986), 21 cert. denied, 481 U.S. 1023 (1987); Bashor v. Risley, 730 F.2d 1228, 1234 (9th Cir.), cert. 22 denied, 469 U.S. 838 (1984). However, counsel must be appointed if the complexities of 23 the case are such that denial of counsel would amount to a denial of due process, and 24 where the petitioner is a person of such limited education as to be incapable of fairly 25 presenting his claims. See Chaney, 801 F.2d at 1196; see also Hawkins v. Bennett, 423 26 F.2d 948 (8th Cir.1970). The court previously denied Kirk’s motions for appointment of 27 counsel on the bases that the amended petition appears sufficiently clear in presenting 28 the issues that he wishes to raise, and the legal issues are not particularly complex. In 1 Kirk’s third motion, he states for the first time that he suffers from Post-Traumatic Stress 2 Disorder and that looking at the documents in this case is very painful and has made him 3 suicidal (ECF No. 24). He presents no support for these assertions. The Court remains 4 unpersuaded that counsel should be appointed as the petition presents the issues Kirk 5 wishes to raise with sufficient clarity. However, the current motion for counsel is denied 6 without prejudice. Kirk may file a renewed motion for appointment of counsel within 7 fourteen (14) days of the date of this order if he can provide exhibits in support of his 8 claims that his serious mental health needs warrant appointment of counsel. 9 10 11 12 It is therefore ordered that petitioner’s motion for appointment of counsel (ECF No. 24) is denied without prejudice as set forth in this order. It is further ordered that petitioner will have fourteen (14) days from the date of this order to file a supported, renewed motion for appointment of counsel, if any. 13 It is further ordered that if petitioner chooses not to file a renewed motion for 14 appointment of counsel, he must file his opposition to respondents’ motion to dismiss, if 15 any, within thirty (30) days of the date of this order. 16 DATED THIS 20th day of April 2017. 17 18 19 MIRANDA M. DU UNITED STATES DISTRICT JUDGE 20 21 22 23 24 25 26 27 28 2

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