Lall v. Baca et al

Filing 8

ORDER denying petitioners motion for appointment of counsel ECF No. 7 ; Clerk to e-serve AG with a copy of the amended petition ECF No. 6 and this order, along with regenerated NEF of the remaining filings (e-served and NEF regenerated o n 10/17/2017); respondents have 60 days to respond to the petition as amended; respondents must file a set of state court record exhibits relevant to the response filed to the petition; all state court record exhibits filed herein must be filed wi th a separate index of exhibits identifying the exhibits by number; CM/ECF attachments that are filed further must be identified by the number or numbers of the exhibits in the attachment; counsel additionally must send a hard copy of all exhibits fi led to the Reno Clerks Office; petitioner will have (30) days from service of the answer, motion to dismiss, or other response to mail a reply or response to the Clerk for filing. See order for further details and instructions. Signed by Judge Miranda M. Du on 10/17/2017. (Copies have been distributed pursuant to the NEF - KW)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT

8

DISTRICT OF NEVADA

9

***

10

JAMES LALL,

11
12
13

Case No. 3:16-cv-00469-MMD-VPC
Petitioner,

ORDER

v.
ISIDRO BACA, et al.,
Respondents.

14
15
16

This represented habeas matter under 28 U.S.C. § 2254 comes before the Court

17

for initial review of the amended petition (ECF No. 6) under Rule 4 of the Rules Governing

18

Section 2254 Cases (the “Habeas Rules”) and on petitioner’s motion for appointment of

19

counsel (ECF No. 7).

20

On the motion for appointment of counsel, the Sixth Amendment right to counsel

21

does not apply in habeas corpus actions. See Knaubert v. Goldsmith, 791 F.2d 722, 728

22

(9th Cir. 1986). However, 18 U.S.C. § 3006A(a)(2)(B) authorizes a district court to appoint

23

counsel to represent a financially eligible petitioner whenever "the court determines that

24

the interests of justice so require." The decision to appoint counsel lies within the

25

discretion of the court; and, absent an order for an evidentiary hearing, appointment is

26

mandatory only when the circumstances of a particular case indicate that appointed

27

counsel is necessary to prevent a due process violation. See, e.g., Chaney v. Lewis, 801

28

F.2d 1191, 1196 (9th Cir.1986); Eskridge v. Rhay, 345 F.2d 778, 782 (9th Cir.1965).

1

The Court does not find that the interests of justice require that counsel be

2

appointed in this case. The issues do not appear to be unduly complex; petitioner had the

3

assistance of counsel on both direct appeal and in the state post-conviction proceedings

4

to develop his claims; and petitioner has demonstrated an adequate ability to articulate

5

the claims pro se in federal court with the resources available to him. From a preliminary

6

review, it does not appear at this juncture that an evidentiary hearing necessarily will be

7

required as to either the merits or a procedural defense. While almost any lay litigant

8

perhaps would be better served by the appointment of counsel, that is not the standard

9

for appointment. The motion presented does not lead to a contrary finding by the Court.

10

The motion therefore will be denied.

11

Following initial review of the amended petition, the Court will direct a response.

12

It is therefore ordered that petitioner’s motion for appointment of counsel (ECF No.

13

7) is denied.

14

It further is ordered that the Clerk of Court informally electronically serve the

15

Nevada Attorney General with a copy of the amended petition and this order, along with

16

regenerated notices of electronic filing of the remaining filings herein.

17

It further is ordered that respondents will have sixty (60) days from entry of this

18

order within which to respond to the petition, as amended. Any response filed must

19

comply with the remaining provisions below, which are tailored to this particular case

20

based upon the Court's screening of the matter and which are entered pursuant to

21

Habeas Rule 4.1

22

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

23

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

24

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

25

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

26
27
28

1In

responding, respondents further should note with regard to timeliness at least
of the claims asserted originally herein that the original petition appears to have been
mailed for filing in July 2016.
2

1

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

2

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

3

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

4

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

5

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

6

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

7

argument to the standard for dismissal under § 2254(b)(2) set forth in Cassett v. Stewart,

8

406 F.3d 614, 623-24 (9th Cir. 2005). In short, no procedural defenses, including

9

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

10

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

11

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

12

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

13

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

14

It is further ordered that respondents must file a set of state court record exhibits

15

relevant to the response filed to the petition, in chronological order and indexed as

16

discussed, infra.

17

It is further ordered that all state court record exhibits filed herein must be filed with

18

a separate index of exhibits identifying the exhibits by number. The CM/ECF attachments

19

that are filed further must be identified by the number or numbers of the exhibits in the

20

attachment, in the same manner as in No. 3:06-cv-00087-ECR-VPC, ## 25-71. The

21

purpose of this provision is so that the Court and any reviewing court thereafter will be

22

able to quickly determine from the face of the electronic docket sheet which numbered

23

exhibits are filed in which attachments.

24
25

It is further ordered that counsel additionally must send a hard copy of all exhibits
filed, for this case, to the Reno Clerk’s Office.

26

It is further ordered that petitioner will have thirty (30) days from service of the

27

answer, motion to dismiss, or other response to mail a reply or response to the Clerk of

28

Court for filing.
3

1

It is further ordered that all requests for relief must be presented by a motion

2

satisfying the requirements of Rule 7(b) of the Federal Rules of Civil Procedure. The Court

3

and the Clerk do not respond to letters and do not take action based upon letters, other

4

than a request for a status check on a matter submitted for more than sixty days. Further,

5

neither the Court nor the Clerk can provide legal advice or instruction.

6

DATED THIS 17th day of October 2017.

7
8
MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4