DeLoney v. Wickham et al

Filing 25

ORDER denying ECF Nos. 11 Motion to grant attorney, 20 Motion for appointment of counsel, 21 Motion to suspend case until motion for counsel is heard, and 22 motion to amend motion for counsel; granting nunc pro tunc EC F No. 9 Motion to Extend Time to file a responsive pleading; denying ECF No. 10 Motion to squash/not grant respondents' motion for extension of time; Petitioner must file his opposition to the motion to dismiss ECF No. 13 by 5/17/2017. Signed by Judge Miranda M. Du on 04/17/2017. (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 DONALD DELONEY, 10 Case No. 3:16-cv-00108-MMD-VPC Petitioner, ORDER v. 11 WICKHAM, et al., 12 Respondents. 13 14 This pro se petition for writ of habeas corpus, pursuant to 28 U.S.C. § 2254 is 15 before the Court on petitioner Donald Deloney’s second and third motions for appointment 16 of counsel. (ECF Nos. 11, 20.) He also filed a motion to supplement the third motion for 17 counsel. (ECF No. 22.) 18 As the Court previously stated in this case, there is no constitutional right to 19 appointed counsel for a federal habeas corpus proceeding. Pennsylvania v. Finley, 481 20 U.S. 551, 555 (1987); Bonin v. Vasquez, 999 F.2d 425, 428 (9th Cir.1993). The decision 21 to appoint counsel is generally discretionary. Chaney v. Lewis, 801 F.2d 1191, 1196 (9th 22 Cir.1986), cert. denied, 481 U.S. 1023 (1987); Bashor v. Risley, 730 F.2d 1228, 1234 (9th 23 Cir.), cert. denied, 469 U.S. 838 (1984). However, counsel must be appointed if the 24 complexities of the case are such that denial of counsel would amount to a denial of due 25 process, and where the petitioner is a person of such limited education as to be incapable 26 of fairly presenting his claims. See Chaney, 801 F.2d at 1196; see also Hawkins v. 27 Bennett, 423 F.2d 948 (8th Cir.1970). The court denied Deloney’s first motion for 28 appointment of counsel because the petition appears sufficiently clear in presenting the 1 issues that he wishes to raise, and the legal issues are not particularly complex. Deloney 2 now argues that Warm Springs Correctional Center does not provide physical access to 3 the law library in order that he might consult case law and that the prison law clerks have 4 little understanding of the law. Again, Deloney has fairly presented his claims and does 5 not present new arguments here to persuade the Court that due process requires counsel 6 in this case. Therefore, Deloney’s motions for counsel are denied. 7 It is therefore ordered that the following motions filed by petitioner: motion to grant 8 attorney (ECF No. 11); motion for appointment of counsel (ECF No. 20); motion to 9 suspend case until motion for counsel is heard (ECF No. 21); and motion to amend motion 10 11 12 13 14 15 16 17 for counsel (ECF No. 22) are all denied. It is further ordered that respondents’ motion for extension of time to file a responsive pleading (ECF No. 9) is granted nunc pro tunc. It is further ordered that petitioner’s motion to squash/not grant respondents’ motion for extension of time (ECF No. 10) is denied. It is further ordered that petitioner must file his opposition to the motion to dismiss, if any, within thirty (30) days of the date of this order. DATED THIS 17th day of April 2017. 18 19 MIRANDA M. DU UNITED STATES DISTRICT JUDGE 20 21 22 23 24 25 26 27 28 2

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