Foster v. Baca et al

Filing 14

ORDER - Clerk directed to electronically serve the first amended petition (ECF No. 12 ) on the respondents and add NV AG as counsel; respondents must file a response to the petition by 7/5/2018; petitioner will have 45 days from service of t he answer, motion to dismiss, or other response to file a reply or opposition; any additional state court record exhibits filed herein; the parties must send courtesy copies of all exhibits in this case to Reno Staff Attorney; petitioner's motion for appointment of counsel (ECF No. 13 ) is denied. See Order for further details and instructions. Signed by Judge Miranda M. Du on 4/6/2018. (Copies have been distributed pursuant to the NEF - LH)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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JOHN MICHAEL FOSTER,

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Case No. 3:17-cv-00317-MMD-WGC
Petitioner,

ORDER

v.
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ISIDRO BACA, et al.,
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Respondents.
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Petitioner John Michael Foster submitted a pro se 28 U.S.C. § 2254 petition for a

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writ of habeas corpus and paid the filing fee (see ECF Nos. 1-1, 10). Pursuant to this

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Court’s order, Foster has filed an amended petition (ECF No. 12). The Court has reviewed

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the petition pursuant to Habeas Rule 4, and it will be docketed and served on

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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. 13).

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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 discretionary.

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Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir.1986), cert. denied, 481 U.S. 1023 (1987);

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Bashor v. Risley, 730 F.2d 1228, 1234 (9th Cir.), cert. denied, 469 U.S. 838 (1984).

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However, counsel must be appointed if the complexities of the case are such that denial

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of counsel would amount to a denial of due process, and where the petitioner is a person

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of such limited education as to be incapable of fairly presenting his claims. See Chaney,

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801 F.2d at 1196; see also Hawkins v. Bennett, 423 F.2d 948 (8th Cir.1970). Here,

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Foster’s petition appears to clearly present the issues that he wishes to raise, and the

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legal issues are not particularly complex. Therefore, counsel is not justified at this time.

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The motion is denied.

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It is therefore ordered that the Clerk electronically serve the petition (ECF No. 12)
the first-amended petition on the respondents.
It is further ordered that the Clerk add Adam Paul Laxalt, Nevada Attorney General,
as counsel for respondents.

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It is further ordered that respondents must file a response to the amended petition,

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

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with any requests for relief by petitioner by motion otherwise being subject to the normal

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

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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 in this

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case must be raised together in a single consolidated motion to dismiss. In other words,

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the Court does not wish to address any procedural defenses raised herein either in

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

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Procedural defenses omitted from such motion to dismiss will be subject to potential

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waiver. Respondents must not file a response in this case that consolidates their

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procedural defenses, if any, with their response on the merits, except pursuant to 28

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

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

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the single motion to dismiss not in the answer; and (b) they shall specifically direct their
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argument to the standard for dismissal under § 2254(b)(2) set forth in Cassett v. Stewart,

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406 F.3d 614, 623-24 (9th Cir. 2005). In short, no procedural defenses, including

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exhaustion, shall be included with the merits in an answer. All procedural defenses,

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including exhaustion, instead must be raised by motion to dismiss.

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It is further ordered that, in any answer filed on the merits, respondents must

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

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

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It is further ordered that petitioner will have forty-five (45) days from service of the

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answer, motion to dismiss, or other response to file a reply or opposition, with any other

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requests for relief by respondents by motion otherwise being subject to the normal briefing

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schedule under the local rules.

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It is further ordered that any additional state court record exhibits filed herein by

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either petitioner or respondents must be filed with a separate index of exhibits identifying

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the exhibits by number. The CM/ECF attachments that are filed further must be identified

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by the number of the exhibit in the attachment.

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It is further ordered that the parties send courtesy copies of all exhibits in this case

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to the Clerk of Court, 400 S. Virginia St., Reno, NV, 89501, directed to the attention of

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“Staff Attorney” on the outside of the mailing address label. Additionally, in the future, all

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parties must provide courtesy copies of any additional exhibits submitted to the Court in

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this case, in the manner described above.

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It is further ordered that petitioner’s motion for appointment of counsel (ECF No.
13) is denied.
DATED THIS 6th day of April 2018.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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