Bautista v. Garrett et al

Filing 25

ORDER - Petitioner's Motion for Appointment of Counsel (ECF No. 20 ) is granted. The Federal Public Defender for the District of Nevada (FPD) is appointed to represent Petitioner. Petitioner's Motion for Leave to File an Amended Pe tition (ECF No. 21 ) is granted. Clerk is directed to detach and file the Amended Petition (ECF No. 21 -1). Clerk shall electronically serve the FPD a copy of this order, together with a copy of the original Petition (ECF No. 4 ) and the Am ended Petition (ECF No. 21 -1) (electronic service to FPD on 4/28/2021; Original Petition via NEF Regeneration). The FPD has 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 proceedings. 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 any further Amended Petition. Respondents ' Motion to Dismiss (ECF No. 8 ) is dismissed without prejudice. Respondents' Motion for Extension of Time to Respond to the Motion for Appointment of Counsel (ECF No. 22 ) is granted nunc pro tunc. Signed by Judge Larry R. Hicks on 4/28/2021. (Copies have been distributed pursuant to the NEF - AB)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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EBERTO BAUTISTA-EREDEA,

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Petitioner, ORDER

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***
Case No. 3:20-cv-00403-LRH-CLB

v.
GARRETT, et al.,
Respondents.

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28 U.S.C. § 2254 habeas corpus petitioner Eberto Bautista-Eredea has

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submitted a second motion for appointment of counsel (ECF No. 20) as well as a motion

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for leave to file an amended petition (ECF No. 21). Respondents have responded to

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both, and Bautista-Eredea replied (ECF Nos. 23, 24). As discussed below, the court

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grants both motions.

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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

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discretionary. Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir.1986), cert. denied, 481

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U.S. 1023 (1987); Bashor v. Risley, 730 F.2d 1228, 1234 (9th Cir.), cert. denied, 469

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U.S. 838 (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).

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Bautista-Eredea’s first motion for counsel was a form motion that merely

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asserted that the issues were too complex for his comprehension (see ECF No. 5).

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However, because his petition was clear and the remaining legal issues did not appear

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to be particularly complex, the court concluded that counsel was not warranted (see

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ECF No. 3).

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Bautista-Eredea now explains that he speaks Spanish and had an interpreter at

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his trial (ECF No. 20). He states, through the help of second inmate, that while he

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intended to raise all issues that he raised in his direct appeal and state postconviction

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petition, the inmate who assisted him in his original federal petition only raised three

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grounds for relief. Id. Bautista-Eredea attached a proposed amended petition to his

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motion for leave to file an amended petition, which appears to include the claims he

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asserted in his state proceedings (ECF Nos. 21, 21-1).

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Responding to both motions, respondents state that they reviewed Bautista-

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Eredea’s state proceedings and confirm that he had an interpreter for his criminal

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proceedings (ECF No. 23). While they note that they cannot otherwise make any

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assertions about Bautista-Eredea’s language fluency, they defer to the court with

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respect to appointment of counsel. They further state that they have no specific

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objection to Bautista-Eredea filing an amended petition. The court, therefore, grants the

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motion for appointment of counsel and the motion for leave to file an amended petition.

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IT IS THEREFORE ORDERED that petitioner’s motion for appointment of

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counsel (ECF No. 20) is GRANTED.
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 petitioner’s motion for leave to file an amended

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petition (ECF No. 21) is GRANTED. The Clerk is directed to detach and FILE the

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amended petition (ECF No. 21-1).

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IT IS FURTHER ORDERED that the Clerk ELECTRONICALLY SERVE the FPD
a copy of this order, together with a copy of the original petition for writ of habeas
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corpus (ECF No. 4) and the amended petition (ECF No. 21-1). The FPD has 30 days

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from the date of entry of this order to file a notice of appearance or to indicate to the

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court its inability to represent petitioner in these proceedings.

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IT IS FURTHER ORDERED that after counsel has appeared for petitioner in this

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case, the court will issue a scheduling order, which will, among other things, set a

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deadline for the filing of any further amended petition.

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IT IS FURTHER ORDERED that respondents’ motion to dismiss (ECF No. 8) is
DISMISSED without prejudice.

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IT IS FURTHER ORDERED that respondents’ motion for extension of time to

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respond to the motion for appointment of counsel (ECF No. 22) is GRANTED nunc pro

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tunc.

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DATED this 28th day of April, 2021.

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LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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