Opinion
3:12-cv-0579-RCJ-VPC
01-15-2013
WILLIAM RONALD CLARK, Petitioner, v. RENEE BAKER, et al., Respondents.
ORDER
William Clark, a Nevada prisoner, has filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254 (ECF No. 1-1 through 1-11) and a motion for leave to file longer than normal petition (ECF No. 3).
Petitioner also filed a motion for leave to proceed in forma pauperis (ECF No. 1), and a motion for appointment of counsel (ECF No.5). The motion for leave to proceed in forma pauperis shall be denied as moot where petitioner has already paid the full filing fee (ECF No. 2).
There is no constitutional right to appointed counsel for a federal habeas corpus proceeding. Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); Bonin v. Vasquez, 999 F.2d 425, 428 (9th Cir. 1993). The decision to appoint counsel is generally discretionary. Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986); Bashor v. Risley, 730 F.2d 1228, 1234 (9th Cir. 1984). However, . counsel must be appointed if the complexities of the case are such that denial of counsel would amount to a denial of due process, and where the petitioner is a person of such limited education as to be incapable of fairly presenting his claims. See Chaney, 801 F.2d at 1196; see also Hawkins v. Bennett, 423 F.2d 948 (8th Cir. 1970).
The petition on file in this action is sufficiently clear in presenting the issues that petitioner wishes to bring. Further, he has had access to his state court records as demonstrated by the numerous attachments to the petition. It does not appear that counsel is justified in this instance. The motion shall be denied.
The motion for leave to file a longer than normal petition shall be granted in part. Petitioner has submitted a memorandum of points and authorities along with several hundred pages of state court records in addition to his petition. These filings are improper at this time.- Therefore, the Clerk shall be directed to not file and to return to petitioner his memorandum of points and authorities in support of his petition, along with the attachments or exhibits thereto. Petitioner is advised that the arguments presented in the memorandum may be of used in responding to a motion to dismiss or answer and it should be put to use at that time.
IT IS THEREFORE ORDERED that the application to proceed in forma pauperis (ECF No. 5) is DENIED AS MOOT.
IT IS FURTHER ORDERED that the Motion to File a Longer Than Normal Petition (ECF No. 3) IS GRANTED. The Clerk shall electronically SERVE a copy of the petition for writ of habeas corpus (CM/ECF pages 1-26 of ECF No. 1) and other motions (and a copy of this order) upon respondents.
IT IS FURTHER ORDERED that the Clerk shall strike from the record and return the original copies of the remainder of the proposed petition and supporting documents to petitioner, including the Memorandum in Support (starting at CM/ECF page 27).
IT IS FURTHER ORDERED that the Motion for Appointment of Counsel (ECF No 4) is DENIED.
IT IS FURTHER ORDERED that the respondents shall file and serve a notice of appearance of counsel within ten days of entry of this Order.
IT IS FURTHER ORDERED that respondents shall have forty-five days from entry of this Order to file and serve an answer or other response to the habeas corpus petition.
IT IS FURTHER ORDERED that, if respondents file a motion to dismiss in response to the habeas petition, petitioner shall have 30 days to respond to such motion, and respondents shall, thereafter, have 20 days to reply. If respondents file an answer in response to the Second Amended Petition, petitioner shall have 30 days to file a reply to the answer.
IT IS FURTHER ORDERED that, henceforth, petitioner shall serve upon the Attorney General of the State of Nevada a copy of every document he submits for consideration by the Court, Petitioner shall include with the original paper submitted for filing a certificate stating the date that a true and correct copy of the document was mailed to the Attorney General. The Court may disregard any paper that does not include a certificate of service. After respondents appear in this action, petitioner shall make such service upon the particular Deputy Attorney General assigned to the case.
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UNITED STATES CHIEF DISTRICT JUDGE