Carlsson v. Filson et al

Filing 8

ORDER that the clerk directed to file the petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254; clerk directed to add AG, as counsel for respondents; clerk directed to electronically serve upon respondents a copy of the petitio n and this order (e-served on 08/23/2017) and return to petitioner a copy of the petition (mailed 08/23/2017); respondents will have 45 days 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 identifying the exhibits by number or letter; hard copy of any additional state court record exhibits must be forwarded for this ca se to the staff attorneys in Las Vegas; petitioner must serve upon respondents or, if appearance has been entered by counsel, upon the attorney(s), a copy of every pleading, motion or other document submitted for consideration by the court. Petitioner must include with the original paper submitted for filing a certificate stating the date that a true and correct copy of the document was mailed to the respondents or counsel for the respondents; petitioners motion for appointment of counsel ECF No. 6 is denied; petitioners motions for an evidentiary hearing ECF Nos. 3 and 7 are denied. Signed by Judge Miranda M. Du on 08/22/2017. (Copies have been distributed pursuant to the NEF - KW)

1
2
3
4
5

UNITED STATES DISTRICT COURT

6

DISTRICT OF NEVADA

7

***

8

JERAMIE CARLSSON,

9
10
11
12

Case No. 3:17-cv-00120-MMD-WGC
Petitioner,

ORDER

v.
TIMOTHY FILSON, et al.,
Respondents.

13

Petitioner has paid the filing fee. The court has reviewed his petition pursuant to

14

Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts.

15

The court will serve the petition upon respondents for a response.

16

Petitioner has filed a motion for appointment of counsel (ECF No. 6). Whenever

17

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

18

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

19

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

20

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

21

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

22

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

23

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

24

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

25

After reviewing the petition, the court finds that appointment of counsel is not necessary.

26

Petitioner has filed two motions for an evidentiary hearing (ECF No. 3, ECF No.

27

7). Evidentiary hearings are restricted in federal habeas corpus. See 28 U.S.C.

28

§ 2254(e)(2). At this point in the proceedings, it is unclear whether petitioner has satisfied

1
2
3
4
5

the statutory requirements and whether an evidentiary hearing is necessary.
It is therefore ordered that the clerk of the court will file the petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254.
It is further ordered that the clerk will add Adam Paul Laxalt, Attorney General for
the State of Nevada, as counsel for respondents.

6

It is further ordered that the clerk will electronically serve upon respondents a copy

7

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

8

petition.

9

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

10

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

11

Respondents must raise all potential affirmative defenses in the initial responsive

12

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

13

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

14

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

15

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

16

which the answer is served to file a reply.

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. The

22

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 magistrate

2

judge that has not been filed with the clerk, and any paper received by a district judge,

3

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

4
5
6
7
8

It is further ordered that petitioner’s motion for appointment of counsel (ECF No.
6) is denied.
It is further ordered that petitioner’s motions for an evidentiary hearing (ECF No.
3, ECF No. 7) are denied.
DATED THIS 22nd day of August 2017.

9
10

MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3