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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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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RICARDO ANDERSON,

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Case No. 3:16-cv-00545-MMD-WGC
Petitioner,

ORDER

v.
ISIDRO BACA, et al.,
Respondents.

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Petitioner has paid the filing fee. The Court has reviewed the petition for a writ

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of habeas corpus. The petition appears to be untimely, but petitioner claims that he is

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actually innocent of at least some of the charges. The Court does not possess enough

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of the state-court record to evaluate petitioner’s claim of actual innocence. The Court

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will serve the petition upon respondents for a response.

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Petitioner has filed a motion for appointment of counsel. (ECF No. 3.) Whenever

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the Court determines that the interests of justice so require, counsel may be appointed

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to any financially eligible person who is seeking habeas corpus relief. 18 U.S.C.

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§ 3006A(a)(2)(B). “[T]he district court must evaluate the likelihood of success on the

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merits as well as the ability of the petitioner to articulate his claims pro se in light of the

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complexity of the legal issues involved.” Weygandt v. Look, 718 F.2d 952 (9th Cir. 1983).

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There is no constitutional right to counsel in federal habeas proceedings. McCleskey v.

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Zant, 499 U.S. 467, 495 (1991). The factors to consider are not separate from the

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underlying claims, but are intrinsically enmeshed with them. Weygandt, 718 F.2d at 954.

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After reviewing the petition, the Court finds that appointment of counsel is not warranted.

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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.

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It is further ordered that the Clerk electronically serve upon respondents a copy of

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the petition and this order. In addition, the Clerk will return to petitioner a copy of the

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petition.

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It is further ordered that respondents will have forty-five (45) days from the date on

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which the petition was served to answer or otherwise respond to the petition.

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Respondents must raise all potential affirmative defenses in the initial responsive

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pleading, including untimeliness, lack of exhaustion, and procedural default. Successive

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motions to dismiss will not be entertained. If respondents file and serve an answer, then

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they must comply with Rule 5 of the Rules Governing Section 2254 Cases in the United

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States District Courts, and then petitioner will have forty-five (45) days from the date on

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which the answer is served to file a reply. If respondents file a motion, then the briefing

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schedule of Local Rule LR 7-2 will apply.

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It is further ordered that any exhibits filed by the parties must be filed with a

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separate index of exhibits identifying the exhibits by number or letter. The CM/ECF

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attachments that are filed further must be identified by the number or numbers (or letter

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or letters) of the exhibits in the attachment. The hard copy of any additional state court

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record exhibits must be forwarded — for this case — to the staff attorneys in Las Vegas.

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The Court otherwise waives compliance with Local Rule LR IA 10-3(e) with regard to the

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exhibits.

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It is further ordered that henceforth, petitioner must serve upon respondents or, if

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appearance has been entered by counsel, upon the attorney(s), a copy of every pleading,

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motion or other document submitted for consideration by the Court. Petitioner must

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include with the original paper submitted for filing a certificate stating the date that a true

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and correct copy of the document was mailed to the respondents or counsel for the
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respondents. The Court may disregard any paper received by a district judge or

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magistrate judge that has not been filed with the Clerk, and any paper received by a

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district judge, magistrate judge, or the Clerk that fails to include a certificate of service.

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It is further ordered that petitioner’s motion for appointment of counsel (ECF No.
3) is denied.
DATED THIS 21st day of December 2016.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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