Anderson v. Baca et al

Filing 8

ORDER - Clerk shall file the petition for a writ of habeas corpus. Clerk shall add AG as counsel for Rs. Clerk shall E-serve AG a copy of the petition and a copy of this order. (E-service 12/21/2016.) Answer/response to petition due by 2/4/20 17. Reply due 45 days from service of answer. Any exhibits filed shall be filed with separate index as specified herein. A hard copy of any additional state court exhibits shall be forwarded to the Las Vegas staff attorneys. Henceforth P sha ll serve Rs a copy of every pleading submitted for consideration, together with a certificate of service. P's motion for appointment of counsel (ECF No. 3 ) is denied. Signed by Judge Miranda M. Du on 12/21/2016. (Copies have been distributed pursuant to the NEF - DRM)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 *** 9 RICARDO ANDERSON, 10 11 12 13 Case No. 3:16-cv-00545-MMD-WGC Petitioner, ORDER v. ISIDRO BACA, et al., Respondents. 14 Petitioner has paid the filing fee. The Court has reviewed the petition for a writ 15 of habeas corpus. The petition appears to be untimely, but petitioner claims that he is 16 actually innocent of at least some of the charges. The Court does not possess enough 17 of the state-court record to evaluate petitioner’s claim of actual innocence. The Court 18 will serve the petition upon respondents for a response. 19 Petitioner has filed a motion for appointment of counsel. (ECF No. 3.) Whenever 20 the Court determines that the interests of justice so require, counsel may be appointed 21 to any financially eligible person who is seeking habeas corpus relief. 18 U.S.C. 22 § 3006A(a)(2)(B). “[T]he district court must evaluate the likelihood of success on the 23 merits as well as the ability of the petitioner to articulate his claims pro se in light of the 24 complexity of the legal issues involved.” Weygandt v. Look, 718 F.2d 952 (9th Cir. 1983). 25 There is no constitutional right to counsel in federal habeas proceedings. McCleskey v. 26 Zant, 499 U.S. 467, 495 (1991). The factors to consider are not separate from the 27 underlying claims, but are intrinsically enmeshed with them. Weygandt, 718 F.2d at 954. 28 After reviewing the petition, the Court finds that appointment of counsel is not warranted. 1 2 3 4 It is therefore ordered that the Clerk of the Court file the petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. It is further ordered that the Clerk add Adam Paul Laxalt, Attorney General for the State of Nevada, as counsel for respondents. 5 It is further ordered that the Clerk electronically serve upon respondents a copy of 6 the petition and this order. In addition, the Clerk will return to petitioner a copy of the 7 petition. 8 It is further ordered that respondents will have forty-five (45) days from the date on 9 which the petition was served to answer or otherwise respond to the petition. 10 Respondents must raise all potential affirmative defenses in the initial responsive 11 pleading, including untimeliness, lack of exhaustion, and procedural default. Successive 12 motions to dismiss will not be entertained. If respondents file and serve an answer, then 13 they must comply with Rule 5 of the Rules Governing Section 2254 Cases in the United 14 States District Courts, and then petitioner will have forty-five (45) days from the date on 15 which the answer is served to file a reply. If respondents file a motion, then the briefing 16 schedule of Local Rule LR 7-2 will apply. 17 It is further ordered that any exhibits filed by the parties must be filed with a 18 separate index of exhibits identifying the exhibits by number or letter. The CM/ECF 19 attachments that are filed further must be identified by the number or numbers (or letter 20 or letters) of the exhibits in the attachment. The hard copy of any additional state court 21 record exhibits must be forwarded — for this case — to the staff attorneys in Las Vegas. 22 The Court otherwise waives compliance with Local Rule LR IA 10-3(e) with regard to the 23 exhibits. 24 It is further ordered that henceforth, petitioner must serve upon respondents or, if 25 appearance has been entered by counsel, upon the attorney(s), a copy of every pleading, 26 motion or other document submitted for consideration by the Court. Petitioner must 27 include with the original paper submitted for filing a certificate stating the date that a true 28 and correct copy of the document was mailed to the respondents or counsel for the 2 1 respondents. The Court may disregard any paper received by a district judge or 2 magistrate judge that has not been filed with the Clerk, and any paper received by a 3 district judge, magistrate judge, or the Clerk that fails to include a certificate of service. 4 5 6 It is further ordered that petitioner’s motion for appointment of counsel (ECF No. 3) is denied. DATED THIS 21st day of December 2016. 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 3

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