Kelsey v. Baker et al

Filing 5

ORDER - Clerk directed to separately file the habeas petition (ECF No. 1 -1) and the motion for appointment of counsel (ECF No. 1 -2); Clerk directed to add the NV AG as counsel for respondents and electronically serve a copy of the petition and a copy of this order (e-service on 5/17/2018); respondents notice of appearance and answer/response to the petition due by 7/16/2018; petitioner will have 60 days from service of the answer, motion to dismiss, or other response to file a reply or opposition; petitioner's motion for appointment of counsel is denied. Signed by Judge Miranda M. Du on 5/16/2018. (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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ZACHARY KELSEY,

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Case No. 3:18-cv-00174-MMD-VPC
Petitioner,

ORDER

v.
RENEE BAKER, et al.,

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Respondents.

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Before the Court is Petitioner Zachary Kelsey’s petition for a writ of habeas corpus

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pursuant to 28 U.S.C. § 2254. Kelsey, a Nevada prisoner, filed his Petition on April 24,

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2018 (ECF No. 1-1), along with an application to proceed in forma pauperis (ECF No. 1),

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and a motion for appointment of counsel (ECF No. 1-2). On April 27, 2018, the Court

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denied the application to proceed in forma pauperis, and ordered Kelsey to pay the filing

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fee for this action. See Order entered April 27, 2018 (ECF No. 3). Kelsey then paid the

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filing fee on May 11, 2018 (ECF No. 4).

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Therefore, the Court has reviewed Kelsey’s habeas petition pursuant to Rule 4 of

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the Rules Governing Section 2254 Cases in the United States District Courts. The Court

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will direct the Clerk of the Court to serve the Petition upon the Respondents, and will

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require a response.

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Kelsey filed, with his Petition, a motion for appointment of counsel (ECF No. 1-2).

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“Indigent state prisoners applying for habeas corpus relief are not entitled to appointed

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counsel unless the circumstances of a particular case indicate that appointed counsel is

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necessary to prevent due process violations.” Chaney v. Lewis, 801 F.2d 1191, 1196 (9th

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Cir. 1986) (citing Kreiling v. Field, 431 F.2d 638, 640 (9th Cir. 1970) (per curiam)). The

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court may, however, appoint counsel at any stage of the proceedings “if the interests of

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justice so require.” See 18 U.S.C. § 3006A; see also Rule 8(c), Rules Governing § 2254

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Cases; Chaney, 801 F.2d at 1196. It appears to the Court that appointment of counsel is

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not warranted in this case. The motion for appointment of counsel will be denied.

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It is therefore ordered that the Clerk of the Court is directed to separately file the

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petition for writ of habeas corpus and the motion for appointment of counsel, each of

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which is currently attached to the in forma pauperis application at ECF No. 1.
It is further ordered that the Clerk of the Court is directed to add Adam Paul Laxalt,

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Attorney General of the State of Nevada, as counsel for Respondents.

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It is further ordered that the Clerk of the Court is directed to electronically serve

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upon Respondents a copy of the petition for writ of habeas corpus and a copy of this

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Order.

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It is further ordered that Respondents will have sixty (60) days from the date on

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which the Petition is served upon them to appear in this action, and to answer or otherwise

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respond to the Petition. If Respondents file an answer, Petitioner will have sixty (60) days

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to file a reply to the answer. If Respondents file a motion to dismiss, Petitioner will have

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sixty (60) days to file a response to the motion to dismiss, and then Respondents will

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have thirty (30) days to file a reply to Petitioner’s response.

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It is further ordered that Petitioner’s motion for appointment of counsel is denied.

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DATED THIS 16th day of May 2018.

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MIRANDA M. DU,
UNITED STATES DISTRICT JUDGE

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