Perez v. Baker et al

Filing 5

ORDER - Clerk shall file and electronically SERVE the petition (ECF No. 1 -1) on the respondents. (E-service 12/6/2017.) Clerk shall add AG as counsel for respondents. Clerk shall detach and file petitioner's motion for appointment of counse l (ECF No. 1 -2). Petitioner's motion for appointment of counsel is GRANTED. FPD is appointed to represent petitioner. Clerk shall ELECTRONICALLY SERVE the FPD a copy of this order, together with a copy of the petition for writ of habeas corpu s. (E-service 12/6/2017.) FPD shall to file a notice of appearance, or indicate inability to do so, by 1/5/2018. Signed by Judge Howard D. McKibben on 12/6/2017. (Copies have been distributed pursuant to the NEF - DRM) Modified on 12/6/2017 to reflect paper copy of Order mailed to P at LCC (DRM).

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

DISTRICT OF NEVADA

8

***

9

NOE ORTEGA PEREZ,

10

Case No. 3:17-cv-00538-HDM-VPC
Petitioner,

ORDER

v.
11
BAKER, et al.,
12
Respondents.
13
14

Petitioner Noe Ortega Perez has submitted a pro se petition for writ of habeas

15

corpus pursuant to 28 U.S.C. § 2254 and has now paid the filing fee (see ECF No. 4).

16

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

17

and served on respondents.

18
19

A petition for federal habeas corpus should include all claims for relief of which
petitioner is aware. If petitioner fails to include such a claim in his petition, he may be

20
21
22

forever barred from seeking federal habeas relief upon that claim. See 28 U.S.C.
§2254(b) (successive petitions). If petitioner is aware of any claim not included in his

23

petition, he should notify the court of that as soon as possible, perhaps by means of a

24

motion to amend his petition to add the claim.

25
26
27

Petitioner has also submitted a motion for appointment of counsel (ECF No. 1-2).
There is no constitutional right to appointed counsel for a federal habeas corpus
proceeding. Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); Bonin v. Vasquez, 999

28
1

1
2
3

F.2d 425, 428 (9th Cir.1993). The decision to appoint counsel is generally
discretionary. Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir.1986), cert. denied, 481
U.S. 1023 (1987); Bashor v. Risley, 730 F.2d 1228, 1234 (9th Cir.), cert. denied, 469

4
5
6

U.S. 838 (1984). However, counsel must be appointed if the complexities of the case
are such that denial of counsel would amount to a denial of due process, and where the

7

petitioner is a person of such limited education as to be incapable of fairly presenting

8

her claims. See Chaney, 801 F.2d at 1196; see also Hawkins v. Bennett, 423 F.2d 948

9

(8th Cir.1970). Here, it appears that the legal issues that Perez wishes to raise may be

10

complex. Therefore, his motion for counsel shall be granted.

11
IT IS THEREFORE ORDERED that the Clerk shall file and electronically
12
13
14
15
16
17
18

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.
IT IS FURTHER ORDERED that the Clerk shall detach and file petitioner’s
motion for appointment of counsel (ECF No. 1-2).
IT IS FURTHER ORDERED that petitioner’s motion for appointment of counsel is

19
GRANTED.
20
21
22
23
24
25
26

IT IS FURTHER ORDERED that the Federal Public Defender for the District of
Nevada (FPD) is appointed to represent petitioner.
IT IS FURTHER ORDERED that the Clerk shall ELECTRONICALLY SERVE the
FPD a copy of this order, together with a copy of the petition for writ of habeas corpus.
The FPD shall have thirty (30) days from the date of entry of this order to file a notice of
appearance or to indicate to the court its inability to represent petitioner in these

27
28

proceedings.
2

1
2
3

IT IS FURTHER ORDERED that after counsel has appeared for petitioner in this
case, the court will issue a scheduling order, which will, among other things, set a
deadline for the filing of an amended petition.

4
5

DATED: December 6, 2017.

6
HOWARD D. MCKIBBEN
UNITED STATES DISTRICT JUDGE

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3