Kirk v. Nevada Department of Corrections et al

Filing 32

ORDER denying ECF Nos. 27 Motion for Appointment of Counsel and 30 Motion for a psychological evaluation; petitioner to file opposition to respondents' motion to dismiss ECF No. 19 by 12/14/2017; granting ECF No. 22 Motion for Leave to File exhibits under seal. Signed by Judge Miranda M. Du on 11/14/2017. (Copies have been distributed pursuant to the NEF - KW)

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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 renewed motion for appointment of counsel (ECF No. 27). 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. This 1 Court denied Kirk’s third motion for counsel without prejudice because he stated for the 2 first time that he suffers from Post-Traumatic Stress Disorder and that looking at the 3 documents in this case is very painful and has made him suicidal (see ECF Nos. 24, 26). 4 This Court directed that Kirk could file a renewed motion for appointment of counsel if he 5 provided exhibits in support of his claims that his serious mental health needs warrant 6 appointment of counsel. 7 Kirk filed this renewed motion for appointment of counsel, a supplement to the 8 motion, and a letter (ECF Nos. 27, 28, 31). Kirk expresses frustration with the Court and 9 with NDOC mental health personnel and states that he has very limited access to his 10 medical records. The Court is sympathetic to Kirk’s difficulties, but his filings continue to 11 demonstrate that he is capable of fairly presenting his claims to this Court. The Court is 12 not persuaded that Kirk suffers from serious mental health issues such that the denial of 13 counsel would amount to a denial of due process. Accordingly, the renewed motion for 14 appointment of counsel is denied. 15 16 17 18 19 20 21 22 It is therefore ordered that petitioner’s renewed motion for appointment of counsel (ECF No. 27) is denied. It is further ordered that petitioner must, within thirty (30) days from the date of this order, file his opposition to respondents’ motion to dismiss, if any. It is further ordered that petitioner’s motion for a psychological evaluation (ECF No. 30) is denied. It is further ordered that respondents’ motion for leave to file exhibits under seal (ECF No. 22) is granted. 23 24 DATED THIS 14th day of November 2017. 25 26 MIRANDA M. DU UNITED STATES DISTRICT JUDGE 27 28 2

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