Bowles v. Baca et al

Filing 3

ORDER that Petitioner's IFP application (ECF No. 1 ) is granted; petitioner's motion for appointment of counsel (ECF No. 1 -5) is denied; petitioner's motion for leave to add additional grounds (ECF No. 1 -3) is de nied as moot; petitioner's motion to extend prison copywork limit (ECF No. 1 -4) is denied without prejudice; Clerk directed to file the petition (ECF No. 1 -1) (mailed a copy to P on 7/9/2018); Clerk directed to add NV AG as counsel for respondents; respondents to file a response to the petition by 9/7/2018; any additional state court record exhibits filed herein; counsel shall send a hard copy of all exhibits filed, for this case, to the Reno Clerk's Off ice; petitioner shall have 30 days from service of the answer, motion to dismiss, or other response to mail a reply or response to the Clerk of Court for filing. See Order for further details and instructions. Signed by Judge Miranda M. Du on 7/9/2018. (Copies have been distributed pursuant to the NEF - LH) Modified on 7/9/2018 to reflect petition mailed to P (LH).

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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TRAVIS BOWLES,

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Case No. 3:18-cv-00272-MMD-WGC
Petitioner,

v.

ORDER

ISIDRO BACA, et al.,
Respondents.

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This pro se habeas petition pursuant to 28 U.S.C. § 2254 comes before the Court

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for consideration of petitioner’s application for leave to proceed in forma pauperis (ECF

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No. 1), motion for appointment of counsel (ECF No. 1-5), motion for leave to add

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additional grounds (ECF No. 1-3), and motion to extend his copywork limit (ECF No. 1-

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4), and for initial review pursuant to Rule 4 of the Rules Governing Section 2254 Cases

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in the United States District Courts.

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Following review of petitioner’s pauper application, the Court finds that petitioner

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cannot pay the filing fee. The application for leave to proceed in forma pauperis will

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therefore be granted, and petitioner will not be required to pay the $5 filing fee.

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Turning to petitioner’s motion for appointment of counsel, there is no constitutional

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right to appointed counsel for a federal habeas corpus proceeding. Pennsylvania v.

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Finley, 481 U.S. 551, 555 (1987); Bonin v. Vasquez, 999 F.2d 425, 428 (9th Cir. 1993).

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The decision to appoint counsel is generally discretionary. Chaney v. Lewis, 801 F.2d

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1191, 1196 (9th Cir. 1986), cert. denied, 481 U.S. 1023 (1987); Bashor v. Risley, 730

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F.2d 1228, 1234 (9th Cir.), cert. denied, 469 U.S. 838 (1984). However, counsel must be

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appointed if the complexities of the case are such that denial of counsel would amount to

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a denial of due process, and where the petitioner is a person of such limited education as

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to be incapable of fairly presenting his claims. See Chaney, 801 F.2d at 1196; see also

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Hawkins v. Bennett, 423 F.2d 948 (8th Cir.1970).

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The petition in this case is sufficiently clear in presenting the issues that petitioner

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wishes to raise, and the issues are not complex. Therefore, the Court concludes that

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counsel is not justified in this case, and the motion for appointment of counsel will be

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denied.

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Following review of the petition, the Court will direct service and a response.

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Addressing petitioner’s motion for leave to add additional grounds, it is unclear

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what relief petitioner seeks. The motion asks for leave to include grounds up to and

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including ground 9 in the petition “to avoid procedural barrment.” (ECF No. 1-3 at 1-2.)

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The petition contains nine grounds. Accordingly, the motion for leave to add additional

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grounds will be denied as moot. To the extent petitioner is seeking a ruling from the Court

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that his grounds will not be dismissed as procedurally defaulted, the motion is denied.

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Whether any of petitioner’s claims are unexhausted and/or procedurally defaulted is an

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issue that may be raised by respondents in a motion to dismiss. The Court will address

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any such contentions at that time.

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Finally, petitioner has filed a motion to extend his copywork limit. Petitioner asserts

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that he has reached his $100 copywork limit and therefore needs a court order extending

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it. Petitioner’s request is based on speculation as to what type of pleadings he may need

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to file in this action. At this time there is nothing for petitioner to file as the Court is directing

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a response from respondents and, under the habeas rules, the relevant state court record

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will be furnished by respondents. Accordingly, the Court will deny petitioner’s speculative

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and overbroad motion without prejudice, to renew when there is a specific basis for doing

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so.
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It is therefore ordered that petitioner’s application for leave to proceed in forma

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pauperis (ECF No. 1) is granted. Petitioner will not be required to pay the filing fee.
It is further ordered that petitioner’s motion for appointment of counsel (ECF No.

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1-5) is denied.
It is further ordered that petitioner’s motion for leave to add additional grounds

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(ECF No. 1-3) is denied as moot.
It is further ordered that petitioner’s motion to extend prison copywork limit (ECF

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No. 1-4) is denied without prejudice.
It is further ordered that the Clerk of the Court file the petition (ECF No. 1-1).

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It is further ordered that the Clerk file the motions for appointment of counsel (ECF

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No. 1-5), motion for leave to add additional grounds (ECF No. 1-3), and motion to extend

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copywork limit (ECF No. 1-4) and reflect on the docket that each has been denied by way

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of this order.

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It is further ordered that the Clerk add Adam P. Laxalt as attorney for respondents

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and informally electronically serve the Nevada Attorney General with a copy of the petition

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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 petition. Any response filed must comply with the

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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 mustbe 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.
It is further ordered that respondents file a set of state court exhibits relevant to the

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response filed to the petition, in chronological order and indexed as discussed, infra.

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

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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 has thirty (30) days from service of the answer,

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

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filing.

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DATED THIS 9th of July 2018.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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