Lowry v. Baker et al

Filing 3

Petitioner's IFP application ECF No. 1 is granted; Clerk directed to file both the Petition (ECF No. 1 -1) and the motion for appointment of counsel (ECF No. 1 -2); Petitioner's claim under the Eleventh Amendment is dismissed wi th prejudice; the motion for appointment of counsel (ECF No. 1 -2) is denied; Clerk directed to informally electronically serve a copy of the Petition and this Order on the NV AG (E-service and NEF regenerated on 5/24/2018); respondents to fi le a response to the petition by 7/23/2018; Respondents must file a set of state court exhibits relevant to the response filed to the Petition; any additional state court record exhibits filed herein; counsel shall send a hard copy of all exh ibits in this case to Reno Clerk's Office; petitioner shall have 30 days from service of the answer, motion to dismiss, or other response to file a reply or opposition. See Order for further details and instructions. Signed by Judge Miranda M. Du on 5/23/2018. (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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CHRISTOPHER LOWRY,

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Case No. 3:18-cv-00224-MMD-VPC
Petitioner,

ORDER

v.
RENE BAKER, et al.,
Respondents.

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This pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 comes

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before the Court on Petitioner’s application for leave to proceed in forma pauperis (ECF

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No. 1), motion for appointment of counsel (ECF No. 1-2), and for initial review pursuant

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to Rule 4 of the Rules Governing Section 2254 Proceedings in the United States District

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Courts.

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Following review of the pauper application, the Court finds that Petitioner cannot

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pay the filing fee. The application for leave to proceed in forma pauperis will therefore be

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granted.

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Turning to Petitioner’s motion for appointment of counsel, the motion will be

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denied. 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); Bashor v. Risley, 730 F.2d 1228,

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1234 (9th Cir. 1984). However, counsel must be appointed if the complexities of the case

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

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

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

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Cir. 1970). The Petition in this case appears sufficiently clear in presenting the issues that

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Petitioner wishes to raise, and the legal issues are not particularly complex. Therefore,

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counsel is not justified.

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Following review of the Petition, the Court will dismiss with prejudice Petitioner’s

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claim that his Eleventh Amendment rights have been violated and will direct a response

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on Petitioner’s remaining claims.

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The Eleventh Amendment protects the states’ sovereign immunity. It is not a right

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afforded to the Petitioner that he can assert in a habeas petition. Accordingly, Petitioner’s

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claim under the Eleventh Amendment will be dismissed with prejudice.

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It is therefore ordered that the application for leave to proceed in forma pauperis
(ECF No. 1) is granted. Petitioner will not be required to pay the filing fee.

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It is further ordered that the Clerk of Court file the Petition (ECF No. 1-1). The Clerk

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also is instructed to file the motion for appointment of counsel (ECF No. 1-2) and reflect

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that it has been denied by this Order.

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It is further ordered that Petitioner’s claim under the Eleventh Amendment is
dismissed with prejudice.
It is further ordered that Petitioner’s motion for appointment of counsel (ECF No.
1-2) is denied.
It is further ordered that the Clerk informally electronically serve the Nevada
Attorney General with a copy of the Petition and this Order.

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It is further ordered that Respondents will have sixty (60) days from entry of this

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Order within which to respond to the remaining claims of the Petition—namely that

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Petitioner’s Fifth and Fourteenth Amendment rights have been violated. Any response

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filed must comply with the remaining provisions below.

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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. Respondents
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must not file a response in this case that consolidates their procedural defenses, if any,

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with their response on the merits, except pursuant to 28 U.S.C. § 2254(b)(2) as to any

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unexhausted claims clearly lacking merit. If Respondents do seek dismissal of

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unexhausted claims under § 2254(b)(2): (a) they must do so within the single motion to

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dismiss, not in the answer; and (b) they must specifically direct their argument to the

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standard for dismissal under § 2254(b)(2) set forth in Cassett v. Stewart, 406 F.3d 614,

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623-24 (9th Cir. 2005). All procedural defenses, including exhaustion, must be raised by

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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 Respondents must file a set of state court exhibits relevant

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to the response filed to the Petition, in chronological order and indexed as discussed,

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infra.

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It is further ordered that all state court record exhibits filed herein must be filed with

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a separate index of exhibits identifying the exhibits by number. The CM/ECF attachments

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that are filed further must be identified by the number or numbers of the exhibits in the

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attachment. The purpose of this provision is so that the Court and any reviewing court

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thereafter will be able to quickly determine from the face of the electronic docket sheet

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which numbered exhibits are filed in which attachments.
It is further ordered that counsel additionally send a hard copy of all exhibits filed

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to, for this case, the Reno Clerk’s Office.

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It is further ordered that Petitioner will have thirty (30) days from service of the

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answer, motion to dismiss, or other response to mail a reply or response to the Clerk of

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Court for filing.

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DATED THIS 23rd day of May 2018.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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