Cardova v. Filson et al

Filing 3

ORDER - The IFP application (ECF No. 1 ) is granted. Clerk shall file and e-serve the petition (ECF No. 1 -1) upon the respondents. (E-service 4/6/2017.) Clerk shall file the combined motion for the appointment of counsel and request for an evide ntiary hearing (ECF No. 1 -2) Petitioner's combined motion for the appointment of counsel and request for an evidentiary hearing is denied. Clerk shall send petitioner a copy of the filed petition. (Mailed to P 4/6/2017.) Clerk shall add AG to the CM/ECF docket sheet as counsel for respondents. Answer/response to petition due by 5/21/2017. If an answer is filed, reply due 45 days after service of answer. Any state court record exhibits filed by respondents must be filed with a separate index of exhibits as specified herein and forwarded, to the staff attorneys in the Reno Division of the Clerk of Court. Signed by Judge Miranda M. Du on 4/6/2017. (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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VINCENT CORDOVA, SR.,

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Case No. 3:17-cv-00183-MMD-VPC
Petitioner,

ORDER

v.
TIMOTHY FILSON, et al.,
Respondents.
This action is a pro se petition for a writ of habeas corpus filed pursuant to 28
U.S.C. § 2254 by a Nevada state prisoner.

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Petitioner has filed a motion to proceed in forma pauperis. (ECF No. 1). Based on

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the information regarding petitioner's financial status, the Court finds that the motion to

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proceed in forma pauperis should be granted. The Court has reviewed the petition and

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determined that it will now be filed and served on respondents.

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Along with the in forma pauperis motion and petition, petitioner submitted a

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combined motion for the appointment of counsel and request for an evidentiary hearing.

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(ECF No. 1-2). Pursuant to 18 U.S.C. § 3006A(2)(B), the district court has discretion to

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appoint counsel when it determines that the “interests of justice” require representation in

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a habeas corpus case. Petitioner has no constitutional right to appointed counsel in a

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federal habeas corpus proceeding. Pennsylvania v. Finley, 481 U.S. 551, 555 (1987);

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Bonin v. Vasquez, 999 F.2d 425, 428 (9th Cir. 1993). The decision to appoint counsel is

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within the Court’s discretion. Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986), cert.

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denied, 481 U.S. 1023 (1987); Bashor v. Risley, 730 F.2d 1228, 1234 (9th Cir.), cert.

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denied, 469 U.S. 838 (1984). In this case, petitioner has submitted a pre-printed “form”

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motion that contains no facts or argument to persuade the Court to appoint counsel in this

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particular case. The petition on file in this action is sufficiently clear in presenting the

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issues that petitioner wishes to bring. The issues in this case are not complex. Counsel

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is not justified and petitioner’s motion is denied. Petitioner’s request for an evidentiary

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hearing is also denied because petitioner has failed to meet the burden required by 28

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U.S.C. § 2254(e).
It is therefore ordered that the application to proceed in forma pauperis (ECF No.

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1) is granted.
It is further ordered that the Clerk file and electronically serve the petition (ECF No.

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1-1) upon the respondents.

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It is further ordered that the Clerk file the combined motion for the appointment of

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counsel and request for an evidentiary hearing (ECF No. 1-2) that was submitted with the

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in forma pauperis motion.
It is further ordered that petitioner’s combined motion for the appointment of

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counsel and request for an evidentiary hearing is denied.
It is further ordered that the Clerk of Court send petitioner a copy of the filed

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petition.
It is further ordered that the Clerk of Court add Nevada Attorney General Adam

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Paul Laxalt to the CM/ECF docket sheet as counsel for respondents.

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

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of this order within which to answer, or otherwise respond to, the petition. In their answer

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or other response, respondents shall address all claims presented in the petition.

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Respondents must raise all potential affirmative defenses in the initial responsive

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pleading, including lack of exhaustion and procedural default. Successive motions to

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dismiss will not be entertained. If an answer is filed, respondents must comply with the

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requirements of Rule 5 of the Rules Governing Proceedings in the United States District

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Courts under 28 U.S.C. §2254. If an answer is filed, petitioner will have forty-five (45)

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days from the date of service of the answer to file a reply.

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It is further ordered that any state court record exhibits filed by respondents must

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be filed with a separate index of exhibits identifying the exhibits by number or letter. The

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hard copy of all state court record exhibits must be forwarded, for this case, to the staff

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attorneys in the Reno Division of the Clerk of Court.

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DATED THIS 6th day of April 2017.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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