Floyd v. Baca et al

Filing 3

ORDER granting ECF No. 1 IFP Application; Clerk directed to file and ELECTRONICALLY SERVE the petition ECF No. 1 -1 on the respondents; Clerk directed to add NV AG as counsel for respondents; respondents to file a response to the p etition by 02/05/2018; petitioner's reply due 45 days after service of answer/response; any additional state court record exhibits filed herein by either petitioner or respondents shall be filed with a separate index of exhibits as specif ied herein; the parties SHALL SEND courtesy copies of all exhibits in this case to the Clerk of Court, 400 S. Virginia St., Reno, NV, 89501, directed to the attention of Staff Attorney; Clerk directed to file ECF No. 1 -2 Motion for Appointment of Counsel; ECF No. 1 -2 motion is denied. See Order for further details and instructions. Signed by Judge Miranda M. Du on 11/07/2017. (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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***

9 JAMES KENNETH FLOYD,
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Case No. 3:17-cv-00400-MMD-WGC
Petitioner,

ORDER

v.
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WARDEN BACA, et al.,
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Respondents.
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Petitioner James Kenneth Floyd has submitted a pro se petition for writ of habeas

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corpus pursuant to 28 U.S.C. § 2254 (ECF No. 1-1). His application to proceed in forma

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pauperis will be granted (ECF No. 1). Floyd challenges his judgment of conviction in state

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case no. C-14-296625-1. The Court has reviewed the petition pursuant to Habeas Rule

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4, and it will be docketed and served on respondents.1

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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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1The court notes that Floyd has submitted a second federal habeas petition in
case no. 3:17-cv-00459-MMD-VPC that appears to challenge a different judgment of
conviction (state case no. 16EW00112B).

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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, Floyd’s

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petition is clear in presenting the issues that he wishes to raise, and the legal issues are

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not particularly complex. Therefore, counsel is not justified at this time. Floyd’s motion is

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denied.

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It is therefore ordered that petitioner’s application to proceed in forma pauperis
(ECF No. 1) is granted.
It is further ordered that the Clerk file and electronically serve the petition (ECF No.
1-1) 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 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 must 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 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 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 shall 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 shall file petitioner’s motion for appointment of
counsel (ECF No. 1-2).
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It is further ordered that petitioner’s motion for appointment of counsel (ECF No.
1-2) is denied.
DATED THIS 7th day of November 2017.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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