Sullivan v. Russell et al

Filing 6

ORDERED that the clerk shall file the petition for a writ of habeas corpus, currently in the docket at ECF No. 1 -1. Clerk shall add AG as counsel for respondents. Clerk shall provide copies of this order and all prior filings to the AG in a m anner consistent with the clerk's current practice, such as regeneration of notices of electronic filing to the office of the AG only. (NEFs ECF Nos. 1-5 regenerated to AG on 6/4/2021.) Respondents must file a response to the petition within 60 days of entry of this order (8/3/2021). Paper copies of any e-filed exhibits need not be provided to chambers or to the staff attorney, unless later directed by the court The motion for appointment of counsel (ECF No. 4 ) is DENIED. Signed by Judge Howard D. McKibben on 6/4/2021. (Copies have been distributed pursuant to the NEF - DRM)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 DISTRICT OF NEVADA 10 11 KEITH WILLIAM SULLIVAN, 12 13 14 15 Petitioner, Case No. 3:21-cv-00196-HDM-WGC ORDER v. PERRY RUSSELL, et al., Respondents. 16 17 This is a habeas corpus action under 28 U.S.C. § 2254. Petitioner Keith Sullivan has paid 18 the filing fee. ECF No. 5. The court has reviewed the petition under Rule 4 of the Rules 19 Governing Section 2254 Cases in the United States District Courts. The court will serve the 20 petition upon respondents for a response. 21 Sullivan also has filed a motion for appointment of counsel. Whenever the court 22 determines that the interests of justice so require, counsel may be appointed to any financially 23 eligible person who is seeking habeas corpus relief. 18 U.S.C. § 3006A(a)(2)(B). "[T]he district 24 court must evaluate the likelihood of success on the merits as well as the ability of the petitioner 25 to articulate his claims pro se in light of the complexity of the legal issues involved." Weygandt 26 v. Look, 718 F.2d 952, 954 (9th Cir. 1983). There is no constitutional right to counsel in federal 27 habeas proceedings. McCleskey v. Zant, 499 U.S. 467, 495 (1991). The factors to consider are 28 1 1 not separate from the underlying claims, but are intrinsically enmeshed with them. Weygandt, 2 718 F.2d at 954. 3 Sullivan's sole claim for relief is that his conviction for burglary—entering a vehicle with 4 intent to commit possession of a stolen vehicle—is unconstitutional because he already had 5 possession of that stolen vehicle before he entered it. Sullivan attached a copy of the Nevada 6 Supreme Court's decision on direct appeal. ECF No. 1-1 at 10-12. The claim that Sullivan 7 presents in this petition is similar enough to the claim that the Nevada Supreme Court evaluated 8 that the court can evaluate the Nevada Supreme Court's decision without further assistance from 9 counsel. 1 See 28 U.S.C. § 2254(d)(1). The court thus denies the motion for appointment of 10 counsel. IT THEREFORE IS ORDERED that the clerk file the petition for a writ of habeas corpus, 11 12 currently in the docket at ECF No. 1-1. IT FURTHER IS ORDERED that the clerk add Aaron Ford, Attorney General for the 13 14 State of Nevada, as counsel for respondents. IT FURTHER IS ORDERED that the clerk provide copies of this order and all prior 15 16 filings to the Attorney General in a manner consistent with the clerk's current practice, such as 17 regeneration of notices of electronic filing to the office of the Attorney General only. IT FURTHER IS ORDERED that respondents must file a response to the petition, 18 19 including potentially by motion to dismiss, within 60 days of entry of this order and that 20 petitioner may file a reply within 30 days of service of an answer. The response and reply time to 21 any motion filed by either party, including a motion filed in lieu of a pleading, will be governed 22 instead by Local Rule LR 7-2(b). 23 IT FURTHER IS ORDERED that any procedural defenses raised by respondents to the 24 petition must be raised together in a single consolidated motion to dismiss. In other words, the 25 court does not wish to address any procedural defenses raised herein either in serial fashion in 26 multiple successive motions to dismiss or embedded in the answer. Procedural defenses omitted 27 1 28 Notably, the Nevada Supreme Court's decision does not mention any principle of federal law. If Sullivan did not present his claim on direct appeal as an issue of federal law, then he might not have exhausted his state-court remedies. See 28 U.S.C. § 2254(b). 2 1 from such motion to dismiss will be subject to potential waiver. Respondents must not file a 2 response in this case that consolidates their procedural defenses, if any, with their response on the 3 merits, except pursuant to 28 U.S.C. § 2254(b)(2) as to any unexhausted claims clearly lacking 4 merit. If respondents do seek dismissal of unexhausted claims under § 2254(b)(2): (a) they must 5 do so within the single motion to dismiss not in the answer; and (b) they must specifically direct 6 their argument to the standard for dismissal under § 2254(b)(2) set forth in Cassett v. Stewart, 406 7 F.3d 614, 623-24 (9th Cir. 2005). In short, no procedural defenses, including exhaustion, may be 8 included with the merits in an answer. All procedural defenses, including exhaustion, instead 9 must be raised by motion to dismiss. 10 IT FURTHER IS ORDERED that, in any answer filed on the merits, respondents must 11 specifically cite to and address the applicable state court written decision and state court record 12 materials, if any, regarding each claim within the response as to that claim. 13 IT FURTHER IS ORDERED that, notwithstanding Local Rule LR IC 2-2(g), paper copies 14 of any electronically filed exhibits need not be provided to chambers or to the staff attorney, 15 unless later directed by the court. 16 17 18 IT FURTHER IS ORDERED that the motion for appointment of counsel (ECF No. 4) is DENIED. DATED: June 4, 2021 19 ______________________________ HOWARD D. MCKIBBEN United States District Judge 20 21 22 23 24 25 26 27 28 3

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