Walker v. Baker et al

Filing 10

ORDER directing the Clerk to file and e-serve the petition for a writ of habeas corpus ECF No. #1 -1 and the statement of additional claims ECF No. #3 on respondents (e-served NV AG on 06/22/2018); respondents will have until 09/20/2018 to answer or otherwise respond to the petition; petitioner will have (45) days from the date on which the answer is served to file a reply; any exhibits filed by the parties must be filed with a separate index of exhibits identifying the exhibits by number; hard copy of all exhibits must be forwarded to the staff attorney in Reno at address indicated in order; petitioner's motion for appointment of counsel ECF No. #5 is denied; petitioner's motion for enlargement of time to pay the filing fee ECF No. #7 is granted nunc pro tunc. (See Order for further details and information). Signed by Judge Miranda M. Du on 6/22/2018. (Copies have been distributed pursuant to the NEF - KW)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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CODIE MS WALKER,

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Case No. 3:18-cv-00154-MMD-VPC
Petitioner,

ORDER

v.
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RENEE BAKER, et al.,
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Respondents.
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Petitioner Codie MS Walker submitted a petition for a writ of habeas corpus and a

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statement of additional claims and has now paid the filing fee. (See ECF Nos. 1-1, 3, 9.)

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The Court has reviewed the Petition and the statement of additional claims pursuant to

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Habeas Rule 4 and it will be docketed and served on Respondents.

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A petition for federal habeas corpus should include all claims for relief of which a

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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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Walker has also filed a motion for appointment of counsel. (ECF No. 5.) There is

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no constitutional right to appointed counsel for a federal habeas corpus proceeding.

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Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); Bonin v. Vasquez, 999 F.2d 425, 428

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(9th Cir. 1993). The decision to appoint counsel is generally discretionary. Chaney v.

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Lewis, 801 F.2d 1191, 1196 (9th Cir.1986); Bashor v. Risley, 730 F.2d 1228, 1234 (9th

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Cir. 1984). However, counsel must be appointed if the complexities of the case are such

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

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is a person of such limited education as to be incapable of fairly presenting his claims.

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

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Here, Walker points out that he is serving a sentence of twenty to fifty years. However,

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his Petition clearly presents the issues that he wishes to raise, and the legal issues do

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not appear to be particularly complex. Therefore, counsel is not justified. Walker’s motion

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is denied.

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It is therefore ordered that the Clerk file and electronically serve the Petition (ECF

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No. 1-1) and the statement of additional claims (ECF No. 3) on Respondents. The Petition

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and the statement of additional claims shall together constitute the Petition.

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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 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 must do so within

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the single motion to dismiss not in the answer; and (b) they must 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, should 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

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briefing 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 or numbers of the exhibits in the attachment.

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It is further ordered that the parties must send paper courtesy copies of all exhibits

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to Clerk of Court, Attn: Staff Attorney, 400 S. Virginia St., Reno, NV, 89501. Additionally,

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in the future, all parties must provide courtesy copies of any additional exhibits submitted

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to the Court in 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.
5) is denied.
It is further ordered that Petitioner’s motion for enlargement of time to pay the filing
fee (ECF No. 7) is granted nunc pro tunc.
DATED THIS 22nd day of June 2018.

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_______________________________
MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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