Battle v. Byrne et al

Filing 7

ORDER - Clerk shall e-serve petition upon Rs. (E-service of ECF No. 1 petition by NEF regeneration.) Clerk shall add AG as counsel for Rs. Answer to petition due by 10/7/2016. Any state court exhibits filed by Rs shall be filed with separate index, and a hard copy to the staff attorneys in Reno. ECF No. 3 IFP Motion is denied as moot. ECF No. 4 Motion for counsel is denied. Signed by Judge Miranda M. Du on 8/23/2016. (Copies have been distributed pursuant to the NEF - DRM)

1
2
3
4
UNITED STATES DISTRICT COURT

5

DISTRICT OF NEVADA

6

***

7
8

JACK JOSEPH BATTLE, JR.,
Plaintiff,

9
10
11

Case No. 3:16-cv-00242-MMD-WGC
ORDER

v.
WARDEN BYRNE, et al.,
Defendants.

12
13

This action is a pro se petition for a writ of habeas corpus filed pursuant to 28

14

U.S.C. § 2254 by a Nevada state prisoner. Petitioner has paid the filing fee for this

15

action. (ECF no. 2). The Court has reviewed the habeas petition, and it shall be served

16

on respondents. Respondents shall file a response to the petition, as set forth at the

17

conclusion of this order.

18

Petitioner has filed an application to proceed in forma pauperis. (ECF no. 3).

19

Given that petitioner has paid the filing fee for this action, his motion to proceed in forma

20

pauperis is denied as moot.

21

Petitioner has filed a motion for the appointment of counsel. (ECF no. 4).

22

Pursuant to 18 U.S.C. § 3006A(2)(B), the district court has discretion to appoint counsel

23

when it determines that the “interests of justice” require representation in a habeas

24

corpus case. Petitioner has no constitutional right to appointed counsel in a federal

25

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

26

Vasquez, 999 F.2d 425, 428 (9th Cir. 1993). The decision to appoint counsel is within

27

the Court’s discretion. Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986), cert.

28

denied, 481 U.S. 1023 (1987); Bashor v. Risley, 730 F.2d 1228, 1234 (9th Cir.), cert.
2

1

denied, 469 U.S. 838(1984). The petition on file in this action is sufficiently clear in

2

presenting the issues that petitioner wishes to bring. The issues in this case are not

3

complex. The appointment of counsel is not justified in this instance. Petitioner’s motion

4

is denied.

5

It is therefore ordered that the Clerk will electronically serve the petition (ECF no.

6

1) upon the respondents. The Clerk of Court will add Attorney General Adam Paul

7

Laxalt to the CM/ECF docket sheet as counsel for respondents.

8

It is further ordered that respondents shall have forty-five (45) days from the entry

9

of this order within which to answer, or otherwise respond to, the petition. In their

10

answer or other response, respondents shall address all claims presented in the

11

petition. Respondents will raise all potential affirmative defenses in the initial responsive

12

pleading, including lack of exhaustion and procedural default. Successive motions to

13

dismiss will not be entertained. If an answer is filed, respondents shall comply with the

14

requirements of Rule 5 of the Rules Governing Proceedings in the United States District

15

Courts under 28 U.S.C. §2254. If an answer is filed, petitioner shall have forty-five (45)

16

days from the date of service of the answer to file a reply.

17

It is further ordered that any state court record exhibits filed by respondents shall

18

be filed with a separate index of exhibits identifying the exhibits by number or letter. The

19

hard copy of all state court record exhibits must be forwarded, for this case, to the staff

20

attorneys in the Reno Division of the Clerk of Court.

21
22
23
24
25

It is further ordered that petitioner’s motion to proceed in forma pauperis (ECF
no. 3) is denied as moot.
It is further ordered that petitioner’s motion for the appointment of counsel (ECF
no. 4) is denied.
DATED THIS 23rd day of August 2016.

26
27

MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

28
2