Jackson v. Wickham et al

Filing 7

ORDER that the Clerk is directed to file and ELECTRONICALLY SERVE the petition for a writ of habeas corpus ECF No. 1 -1 on the respondents (e-served on 10/13/2017); clerk directed to add AG, as counsel for respondents; respondents will have until 01/10/2018 to answer or otherwise respond to the petition; petitioner will have (45) days from the date on which the answer is served to file a reply; any exhibits filed by the parties must be filed with a separate index of exhibits iden tifying the exhibits by number or letter; the parties SHALL SEND courtesy copies of all exhibits in this case to the Clerk, 400 South Virginia St., Reno, NV, 89510, directed to the attention of staff attorney; Clerk SHALL FILE petitioner's motion for appoint of counsel ECF No. 1 -3; the motion for appointment of counsel is DENIED. Signed by Judge Larry R. Hicks on 10/13/2017. (Copies have been distributed pursuant to the NEF - KW)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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WAYNE A. JACKSON,

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Petitioner, ORDER
v.
HAROLD WICKHAM, et al.,
Respondents.

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Case No. 3:17-cv-00098-LRH-WGC

Petitioner Wayne A. Jackson has submitted a pro se petition for writ of habeas

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corpus pursuant to 28 U.S.C. § 2254. He has now paid the filing fee (see ECF No. 6).

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The court has reviewed the petition pursuant to Habeas Rule 4, and it shall be docketed

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and served on 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. 1-3).

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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

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discretionary. Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir.1986), cert. denied, 481
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U.S. 1023 (1987); Bashor v. Risley, 730 F.2d 1228, 1234 (9th Cir.), cert. denied, 469

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U.S. 838 (1984). However, counsel must be appointed if the complexities of the case

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are such that denial of counsel would amount to a denial of due process, and where the

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petitioner is a person of such limited education as to be incapable of fairly presenting his

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claims. See Chaney, 801 F.2d at 1196; see also Hawkins v. Bennett, 423 F.2d 948 (8th

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Cir.1970). Here, Jackson’s petition is clear in presenting the issues that he wishes to

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raise, and the legal issues are not particularly complex. Therefore, counsel is not

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justified at this time. Jackson’s motion is denied.

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IT IS THEREFORE ORDERED that the Clerk shall file and ELECTRONICALLY
SERVE the petition (ECF No. 1-1) on the respondents.
IT IS FURTHER ORDERED that the Clerk shall add Adam Paul Laxalt, Nevada
Attorney General, as counsel for respondents.
IT IS FURTHER ORDERED that respondents shall file a response to the petition,

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including potentially by motion to dismiss, within ninety (90) days of service of the

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petition, with any requests for relief by petitioner by motion otherwise being subject to

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the normal briefing schedule under the local rules. Any response filed shall comply with

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the remaining 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

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

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words, the court does not wish to address any procedural defenses raised herein either

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

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answer. Procedural defenses omitted from such motion to dismiss will be subject to

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potential waiver. Respondents shall not file a response in this case that consolidates

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

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

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

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do so within the single motion to dismiss not in the answer; and (b) they shall

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

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procedural defenses, including exhaustion, shall be included with the merits in an

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answer. All procedural defenses, including exhaustion, instead must be raised by

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motion to dismiss.

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IT IS FURTHER ORDERED that, in any answer filed on the merits, respondents

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

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

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IT IS FURTHER ORDERED that petitioner shall have forty-five (45) days from

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service of the answer, motion to dismiss, or other response to file a reply or opposition,

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with any other requests for relief by respondents by motion otherwise being subject to

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the normal briefing schedule under the local rules.

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IT IS FURTHER ORDERED that any additional state court record exhibits filed

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herein by either petitioner or respondents shall be filed with a separate index of exhibits

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identifying the exhibits by number. The CM/ECF attachments that are filed further shall

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be identified by the number of the exhibit in the attachment.

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IT IS FURTHER ORDERED that the parties SHALL SEND courtesy copies of all

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

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to the attention of “Staff Attorney” on the outside of the mailing address label. Additionally,

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in the future, all parties shall provide courtesy copies of any additional exhibits submitted

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to the court in this case, in the manner described above.

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IT IS FURTHER ORDERED that the Clerk shall file petitioner’s motion for
appointment of counsel (ECF No. 1-3).
IT IS FURTHER ORDERED that petitioner’s motion for appointment of counsel
(ECF No. 1-3) is DENIED.
DATED this 13th day of October, 2017.

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LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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