Pineda v. Williams et al

Filing 4

ORDER granting ECF No. 2 Motion/Application for Leave to Proceed in forma pauperis; Clerk directed to file and e-serve ECF NO. 1 -1 Petition on Respondents; Clerk directed to add AG as counsel for Respondents; Respondents have until 0 1/16/2017 to file a response to the petition; Petitioner has 45 days from service of the answer/motion/response to the petition to file a reply/opposition; denying ECF No. 3 Motion for Appointment of Counsel; See Order for further details and instructions re additional exhibits. Signed by Judge Robert C. Jones on 10/12/2016. (Copies have been distributed pursuant to the NEF - KW)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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RAY PINEDA,

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Case No. 3:16-cv-00187-RCJ-WGC
Petitioner,

ORDER

v.
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BRIAN WILLIAMS, et al.,
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Respondents.
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Petitioner Ray Pineda has submitted a pro se petition for writ of habeas corpus

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pursuant to 28 U.S.C. § 2254. His application to proceed in forma pauperis (ECF No. 2)

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shall be granted. The court has reviewed the petition pursuant to Habeas Rule 4, and it

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shall be docketed and served on respondents.

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A petition for federal habeas corpus should include all claims for relief of which

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petitioner is aware. If petitioner fails to include such a claim in his petition, he may be

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forever barred from seeking federal habeas relief upon that claim. See 28 U.S.C.

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§2254(b) (successive petitions). If petitioner is aware of any claim not included in his

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petition, he should notify the court of that as soon as possible, perhaps by means of a

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motion to amend his petition to add the claim.

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Petitioner has also submitted a motion for appointment of counsel (ECF No. 1-2).

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There is no constitutional right to appointed counsel for a federal habeas corpus

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proceeding. Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); Bonin v. Vasquez, 999

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F.2d 425, 428 (9th Cir.1993). The decision to appoint counsel is generally

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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
U.S. 838 (1984). However, counsel must be appointed if the complexities of the case
are such that denial of counsel would amount to a denial of due process, and where the
petitioner is a person of such limited education as to be incapable of fairly presenting his
claims. See Chaney, 801 F.2d at 1196; see also Hawkins v. Bennett, 423 F.2d 948 (8th
Cir.1970). Here, Pineda’s petition appears sufficiently clear in presenting the issues
that he wishes to raise, and the legal issues are not particularly complex. Therefore,
counsel is not justified. Pineda’s motion is denied.
IT IS THEREFORE ORDERED that petitioner’s application to proceed in forma
pauperis (ECF No. 2) is GRANTED.
IT IS FURTHER ORDERED that the Clerk shall file and ELECTRONICALLY
SERVE the petition (ECF No. 1-1) on the respondents.
IT IS FURTHER ORDERED that the Clerk shall add Adam Paul Laxalt, Nevada
Attorney General, as counsel for respondents.
IT IS FURTHER ORDERED that respondents shall file a response to the petition,
including potentially by motion to dismiss, within ninety (90) days of service of the
petition, with any requests for relief by petitioner by motion otherwise being subject to
the normal briefing schedule under the local rules. Any response filed shall comply with
the remaining provisions below, which are entered pursuant to Habeas Rule 5.
IT IS FURTHER ORDERED that any procedural defenses raised by respondents
in this case shall be raised together in a single consolidated motion to dismiss. In other
words, the court does not wish to address any procedural defenses raised herein either
in seriatum fashion in multiple successive motions to dismiss or embedded in the
answer. Procedural defenses omitted from such motion to dismiss will be subject to
potential waiver. Respondents shall not file a response in this case that consolidates
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

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respondents do seek dismissal of unexhausted claims under § 2254(b)(2): (a) they shall
do so within the single motion to dismiss not in the answer; and (b) they shall
specifically direct their argument to the standard for dismissal under § 2254(b)(2) set
forth in Cassett v. Stewart, 406 F.3d 614, 623-24 (9th Cir. 2005). In short, no
procedural defenses, including exhaustion, shall be included with the merits in an
answer. All procedural defenses, including exhaustion, instead must be raised by
motion to dismiss.
IT IS FURTHER ORDERED that, in any answer filed on the merits, respondents
shall specifically cite to and address the applicable state court written decision and state
court record materials, if any, regarding each claim within the response as to that claim.
IT IS FURTHER ORDERED that petitioner shall have forty-five (45) days from
service of the answer, motion to dismiss, or other response to file a reply or opposition,
with any other requests for relief by respondents by motion otherwise being subject to
the normal briefing schedule under the local rules.
IT IS FURTHER ORDERED that any additional state court record exhibits filed
herein by either petitioner or respondents shall be filed with a separate index of exhibits
identifying the exhibits by number. The CM/ECF attachments that are filed further shall
be identified by the number of the exhibit in the attachment.
IT IS FURTHER ORDERED that the parties SHALL SEND courtesy copies of all
exhibits in this case to the Clerk of Court, 400 S. Virginia St., Reno, NV, 89501, directed
to the attention of “Staff Attorney” on the outside of the mailing address label.
Additionally, in the future, all parties shall provide courtesy copies of any additional
exhibits submitted to the court in this case, in the manner described above.
IT IS FURTHER ORDERED that petitioner’s motion for appointment of counsel
(ECF No. 3) is DENIED.

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DATED: 12 October 2016.
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ROBERT C. JONES
UNITED STATES DISTRICT JUDGE

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