Rosaschi v. Wickham et al

Filing 6

ORDER directing Clerk to file and e-serve ECF No. 1 -1 Petition on Respondents (NV AG added, NEF sent 12/12/2016). Response to petition due within 90 days; reply due within 45 days thereafter. Any state court exhibits to be filed with separate ind ex. Hard copies of any exhibits shall be forwarded for this case to staff attorneys in Reno. Clerk directed to file ECF No. 1 -2 Motion for Appointment of counsel -- motion denied. ECF No. 3 Motion for Judicial Action denied as moot. Signed by Judge Miranda M. Du on 12/9/2016. (Copies have been distributed pursuant to the NEF - KR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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JAMIE ROSASCHI,

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Case No. 3:16-cv-00442-MMD-VPC
Petitioner,

ORDER

v.
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HAROLD WICKHAM, et al.,
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Respondents.
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Petitioner Jamie Rosaschi has submitted a pro se petition for writ of habeas corpus

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pursuant to 28 U.S.C. § 2254. He has now paid the filing fee (ECF No. 5). The Court has

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reviewed the petition pursuant to Habeas Rule 4, and it will be docketed and served on

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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 discretionary.

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Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir.1986), cert. denied, 481 U.S. 1023 (1987);

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Bashor v. Risley, 730 F.2d 1228, 1234 (9th Cir.), cert. denied, 469 U.S. 838 (1984).

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However, counsel must be appointed if the complexities of the case are such that denial

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of counsel would amount to a denial of due process, and where the petitioner is a person

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of such limited education as to be incapable of fairly presenting his claims. See Chaney,

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801 F.2d at 1196; see also Hawkins v. Bennett, 423 F.2d 948 (8th Cir.1970). Here,

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Rosaschi’s petition is clear in presenting the issues that he wishes to raise, and the legal

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issues are not particularly complex. Therefore, counsel is not justified at this time.

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Rosaschi’s motion is denied.

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It is therefore ordered that the Clerk file and electronically serve the petition (ECF
No. 1-1) on the respondents.
It is further ordered that the Clerk add Adam Paul Laxalt, Nevada Attorney General,
as counsel for respondents.

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It is further ordered that respondents must file a response to the petition, including

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potentially by motion to dismiss, within ninety (90) days of service of the petition, with any

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requests for relief by petitioner by motion otherwise being subject to the normal briefing

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schedule under the local rules. Any response filed must comply with the remaining

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provisions below, which are entered pursuant to Habeas Rule 5.

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It is further ordered that any procedural defenses raised by respondents in this

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case shall be raised together in a single consolidated motion to dismiss. In other words,

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the Court does not wish to address any procedural defenses raised herein either in

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seriatum fashion in multiple successive motions to dismiss or embedded in the answer.

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Procedural defenses omitted from such motion to dismiss will be subject to potential

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waiver. Respondents must not file a response in this case that consolidates their

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procedural defenses, if any, with their response on the merits, except pursuant to 28

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U.S.C. § 2254(b)(2) as to any unexhausted claims clearly lacking merit. If respondents

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do seek dismissal of unexhausted claims under § 2254(b)(2): (a) they must do so within

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the single motion to dismiss not in the answer; and (b) they must specifically direct their

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argument to the standard for dismissal under § 2254(b)(2) set forth in Cassett v. Stewart,
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406 F.3d 614, 623-24 (9th Cir. 2005). In short, no procedural defenses, including

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exhaustion, will be included with the merits in an answer. All procedural defenses,

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including exhaustion, instead must be raised by motion to dismiss.

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It is further ordered that, in any answer filed on the merits, respondents must

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specifically cite to and address the applicable state court written decision and state court

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record materials, if any, regarding each claim within the response as to that claim.

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It is further ordered that petitioner will have forty-five (45) days from service of the

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answer, motion to dismiss, or other response to file a reply or opposition, with any other

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requests for relief by respondents by motion otherwise being subject to the normal briefing

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schedule under the local rules.

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It is further ordered that any additional state court record exhibits filed herein by

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either petitioner or respondents must be filed with a separate index of exhibits identifying

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the exhibits by number. The CM/ECF attachments that are filed further mustl be identified

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by the number of the exhibit in the attachment.

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It is further ordered that the parties must send courtesy copies of all exhibits in this

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case to the Clerk of Court, 400 S. Virginia St., Reno, NV, 89501, directed to the attention

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of “Staff Attorney” on the outside of the mailing address label. Additionally, in the future,

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all parties must provide courtesy copies of any additional exhibits submitted to the Court

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in this case, in the manner described above.

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It is further ordered that the Clerk file petitioner’s motion for appointment of counsel
(ECF No. 1-2).
it is further ordered that petitioner’s motion for appointment of counsel (ECF No. 12) is denied.
It is further ordered that petitioner’s motion for judicial action on petition (ECF No.
3) is denied as moot.
DATED THIS 9th day of December 2016.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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