Lopez v. Key
Filing
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ORDER STRIKING RENEWED MOTION FOR APPOINTMENT OF COUNSEL, DENYING MOTION TO RECONSIDER, CONSOLIDATING CASE NUMBERS 4:16-CV-5156-SAB AND 4:16-CV-5157-SAB, AND DIRECTING RETURN OF EXHIBIT. Petitioner shall file no further documents in this file, 4:16-CV-05157-SAB. Signed by Judge Stanley A Bastian. (VR, Courtroom Deputy) **5 PAGE(S), PRINT ALL** (Elvis Camillo Lopez, Prisoner ID: 813011)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF WASHINGTON
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ELVIS CAMILLO RENTERIA LOPEZ,
Petitioner,
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4:16-CV-05157-SAB
4:16-CV-05156-SAB
v.
JAMES KEY,
Respondent.
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ORDER STRIKING RENEWED
MOTION FOR APPOINTMENT
OF COUNSEL, DENYING
MOTION TO RECONSIDER,
CONSOLIDATING CASE
NUMBERS 4:16-CV-05156-SAB
AND 4:16-CV-05157-SAB, AND
DIRECTING RETURN OF
EXHIBIT
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By Order filed February 6, 2017, the Court instructed Mr. Lopez to show
22 cause why this action should not be consolidated with Petitioner’s prior habeas
23 petition, 4:16-CV-05156-SAB, ECF No. 6. Petitioner, a prisoner at the Airway
24 Heights Corrections Center, is proceeding pro se and the filing fee has been paid.
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STRIKING MOTION FOR APPOINTMENT OF COUNSEL
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On February 8, 2017, Petitioner submitted a Motion for Appointment of
27 Counsel with accompanying attachments totaling 879 pages, ECF No. 7. The
28 document was unsigned. Petitioner has remedied this deficiency, ECF No. 11.
ORDER . . . -- 1
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Nevertheless, Fed. R. Civ. P. 8(d), requires that pleadings be simple concise
2 and direct. The Court finds that Petitioner’s submissions violate this Rule. Based
3 on the Court’s inherent authority to manage its own docket, see Link v. Wabash
4 Railroad Co., 370 U.S. 626, 630-31 (1962) (recognizing that a federal court has the
5 inherent authority to “manage [its] own affairs so as to achieve the orderly and
6 expeditious disposition of cases”), IT IS ORDERED Plaintiff’s Motion, ECF No.
7 7, is STRICKEN.
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MOTION TO RECONSIDER
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On February 9, 2017, Petitioner filed a document labeled, “Motion to
10 Reconsider Motion to Grant Counsel and Sever Case from Case 4:16-CV-0515611 SAB, Showing Cause Why Case 4:16-CV-05157-SAB Should be Granted.” ECF
12 No. 8. The Court liberally construes this Motion as a Motion for Revision
13 pursuant to Fed. R. Civ. P. 54(b).
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Under Rule 54(b), any interlocutory order “may be revised at any time
15 before the entry of a judgment adjudicating all the claims and all the parties’ rights
16 and liabilities.” The Court finds no basis for revising the prior Order.
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Once again, “[i]ndigent state prisoners applying for habeas corpus relief are
18 not entitled to appointed counsel unless the circumstances indicate that appointed
19 counsel is necessary to prevent due process violations.” Chaney v. Lewis, 801 F.2d
20 1191 (9th Cir. 1986); Kreiling v. Field, 431 F.2d 638, 640 (9th Cir. 1970);
21 Eskridge v. Rhay, 345 F.2d 778, 782 (9th Cir. 1965). The Court has discretion to
22 appoint counsel when “the interests of justice so requires,” 18 U.S.C.
23 § 3006A(a)(2)(B), and the finds that Petitioner has not made the necessary showing
24 for appointment of counsel at this time.
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As for Petitioner’s contentions that his two pending habeas petitions should
26 remain separate, the Court finds no authority for the simultaneous maintenance of
27 two separate habeas petitions challenging the same conviction. The law of this
28 Circuit is that when a new habeas petition is filed before the adjudication of a prior
ORDER . . . -- 2
1 habeas petition is complete, the new petition should be construed as a motion to
2 amend the pending petition. Woods v. Carey, 525 F.3d 886, 890 (9th Cir. 2008).
3 Therefore, IT IS ORDERED Petitioner’s Motion, ECF No. 8, is DENIED and
4 this action shall be consolidated with 4:16-CV-05156-SAB, with the Petition in
5 this case, ECF No. 5, filed as a Motion to Amend in 4:16-CV-05156-SAB.
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EXHIBITS
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Exhibits should not be submitted with a petition. Instead, the relevant
8 information contained in an exhibit should be paraphrased in the petition.
9 Petitioner should keep his exhibits to use to support or oppose a motion for
10 summary judgment or a motion to dismiss, or for use at trial.
Many of the “Exhibits” Petitioner submitted on February 8, 2017, as
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12 attachments to his Motion for Appointment of Counsel, ECF No. 8, are copies of
13 Orders issued by the Ninth Circuit Court of Appeals and other Federal District
14 Courts, as well as documents he has received in other actions or previously
15 submitted in this and other actions. These types of documents should not be re16 filed.
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Rule 8(a) of the Federal Rules of Civil Procedure requires a “short and plain
18 statement of the claim.” FED. R. CIV. P. 8(a) (2). A complaint having the factual
19 elements of a cause of action scattered throughout the complaint and not organized
20 into a “short and plain statement of the claim” may be dismissed for failure to
21 satisfy Rule 8(a). See Sparling v. Hoffman Constr. Co., 864 F.2d 635, 640 (9th Cir.
22 1988); McHenry v. Renne, 84 F.3d 1172 (9th Cir. 1996). These Rules are equally
23 applicable to habeas petitions brought in federal court. See FED. R. CIV. P. 81(a)(4).
24 The Court will not scour hundreds and hundreds of pages of exhibits in search of
25 claims Petitioner has not clearly and concisely presented.
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The Court has already directed that Petitioner’s Motion, ECF No. 8, be
27 stricken and it would be ineffectual to “return” electronically submitted documents.
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ORDER . . . -- 3
1 No further action will be taken regarding the Exhibits presented on February 8,
2 2017.
On February 28, 2017, the Court received a Compact Disc on which a 911
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4 call is purportedly recorded. A Federal District Court is not a repository for non5 scannable exhibits. Therefore, the Clerk of Court is DIRECTED to return this
6 item to the address listed on the transmittal envelope received on February 28,
7 2017. If the Court determines, at some later date, that this item is necessary to
8 adjudicate Petitioner’s habeas matter, Petitioner will be directed to provide it.
SUMMARY OF ORDER
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10 IT IS HEREBY ORDERED:
1. The Clerk of Court shall STRIKE Petitioner’s renewed Motion for
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Appointment of Counsel, ECF No. 7, for non-compliance with Federal Rules
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of Civil Procedure.
2. Petitioner’s Motion for Reconsideration, construed as a Motion for Revision,
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ECF No. 8, is DENIED.
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3. The Clerk of Court shall CONSOLIDATE this cause number 4:16-CV-
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05157-SAB, with cause number 4:16-CV-05156, and FILE, nunc pro tunc,
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the Petition filed in cause number 4:16-CV-05157-SAB, ECF No. 5, as a
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Motion to Amend in cause number 4:16-cv-05156, and NOTE IT FOR
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HEARING.
4. The Clerk of Court SHALL RETURN the CD received on February 28,
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2017, ECF No. 12, to the sender noted on the transmittal envelope, ECF No.
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12-1.
5. Petitioner shall file no further “Exhibits” with the Court unless explicitly
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directed by the Court to do so.
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ORDER . . . -- 4
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6. The Clerk of Court shall FILE copies of this Order in this action and in
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cause number 4:16-CV-05156, PROVIDE a copy to Petitioner and
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ADMINISTRATIVELY CLOSE this file.
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7. Petitioner shall file no further documents in this file, 4:16-CV-05157-SAB.
DATED this 3rd day of April, 2017.
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Stanley A. Bastian
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United States District Judge
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ORDER . . . -- 5
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