Opinion
2:11-cv-01484-PMP-GWF.
October 20, 2011
ORDER
Joyce Hicks, a Nevada prisoner, has submitted a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254 (docket #1-1).
Petitioner's second application to proceed in forma pauperis (docket #9) is granted. The habeas petition shall be filed and docketed, and it shall be served upon the respondents.
A petition for federal habeas corpus should include all claims for relief of which petitioner is aware. If petitioner fails to include such a claim in his petition, she may be forever barred from seeking federal habeas relief upon that claim. See 28 U.S.C. § 2254(b) (successive petitions). If petitioner is aware of any claim not included in her petition, he should notify the court of that as soon as possible, perhaps by means of a motion to amend her petition to add the claim.
Petitioner has also submitted a motion for the appointment of counsel (docket #4). 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), cert. denied, 481 U.S. 1023 (1987); Bashor v. Risley, 730 F.2d 1228, 1234 (9th Cir.), cert. denied, 469 U.S. 838 (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 her claims. See Chaney, 801 F.2d at 1196; see also Hawkins v. Bennett, 423 F.2d 948 (8th Cir. 1970). The petition in this action appears sufficiently clear in presenting the issues that petitioner wishes to raise. Counsel is not justified at this time. The motion is denied without prejudice.
Petitioner has also filed several other motions. These appear to be motions that either were or could have been filed in connection with her direct appeal or state habeas petition. Petitioner's motion to proceed with appeal on original records (docket #2) and motion for bail or release pending appeal (docket #3) are denied as irrelevant. Petitioner's motion for an evidentiary hearing (docket #5) is denied as premature.
IT IS THEREFORE ORDERED that the Clerk shall FILE and ELECTRONICALLY SERVE the petition (docket #1-1) on the respondents.
IT IS FURTHER ORDERED that respondents shall have forty-five (45) days from entry of this order within which to answer, or otherwise respond to, the petition. In their answer or other response, respondents shall address any claims presented by petitioner in his petition as well as any claims presented by petitioner in any Statement of Additional Claims. Respondents shall raise all potential affirmative defenses in the initial responsive pleading, including lack of exhaustion and procedural default. Successive motions to dismiss will not be entertained. If an answer is filed, respondents shall comply with the requirements of Rule 5 of the Rules Governing Proceedings in the United States District Courts under 28 U.S.C. § 2254. If an answer is filed, petitioner shall have forty-five (45) days from the date of service of the answer to file a reply.
IT IS FURTHER ORDERED that, henceforth, petitioner shall serve upon the Attorney General of the State of Nevada a copy of every pleading, motion, or other document she 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.
IT IS FURTHER ORDERED that the following motions filed by petitioner: motion to proceed with appeal on original records (docket #2); motion for bail or release pending appeal (docket #3); motion for appointment of counsel (docket #4); and motion for an evidentiary hearing (docket #5) are all DENIED.