Garcia-Gaona v. Wickham et al

Filing 6

ORDERED that Clerk file and e-serve the petition ECF No. 1 -1 on the respondents (e-service on 12/18/17); Clerk directed to add NV AG as counsel for respondents; respondents to file a response to the petition by 3/18/2018; petitioner shall have 45 days from service of the answer, motion to dismiss, or other response to file a reply or opposition; any additional state court record exhibits filed herein; the parties SHALL SEND courtesy copies of all exhibits in this case to Reno Staff Attorney; Clerk directed to file ECF No. 1 -3 Motion for Appointment of Counsel and that it is denied. See Order for further details and instructions. Signed by Judge Miranda M. Du on 12/18/2017. (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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JOSE MANUEL GARCIA-GAONA,

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Case No. 3:17-cv-00360-MMD-WGC

Petitioner,

ORDER

v.
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HAROLD WICKHAM, et al.,
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Respondents.
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Petitioner Jose Manuel Garcia-Gaona has submitted a 28 U.S.C. § 2254 petition

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for a writ of habeas corpus. He has now paid the filing fee (see ECF No. 5). The court

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

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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.

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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.

See 28 U.S.C.

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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 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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Garcia-Gaona’s petition is clear in presenting 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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The Court notes that Garcia-Gaona has acknowledged that he submitted his

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petition outside the one-year statute of limitations imposed by the Antiterrorism and

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Effective Death Penalty Act’s (AEDPA) (see ECF No. 1-2). 28 U.S.C. § 2244(d). He

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asserts that his state postconviction counsel failed to timely advise him that the Nevada

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Supreme Court affirmed the denial of his state petition and indicates that he believes he

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is entitled to equitable tolling. The Court will not consider the tolling issue at this time.

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However, should respondents file a motion to dismiss, petitioner may raise and/or re-raise

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any arguments regarding equitable tolling in an opposition to any such motion.

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It is therefore ordered that the Clerk 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.

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

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

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

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

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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 shall 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 shall 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 shall 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 must send courtesy copies of all exhibits in this

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

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

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

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in this case, in the manner described above.

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It is further ordered that the Clerk file petitioner’s motion for appointment of counsel
(ECF No. 1-3).
It is further ordered that the motion for appointment of counsel is denied.
DATED THIS 18th day of December 2017.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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