Alvarez v. Najera

• Court: District Court, D. Nevada
• Decided: February 8, 2021
• Docket: 2:20-cv-01894
• Status: Unknown

Opinion

1 2 3 4 5 6 UNITED STATES DISTRICT COURT

7 DISTRICT OF NEVADA

8 * * * 9 FRANCISCO ALVAREZ, Case No. 2:20-cv-01894-KJD-VCF

10 Petitioner, ORDER

11 v. 12 WILLIAM HUTCHINGS, et al., 13 Respondents. 14 15 Before the court is Francisco Alvarez’s pro se 28 U.S.C. § 2254 habeas corpus 16 petition (ECF No. 1-1). Pursuant to this court’s order, he has now paid the filing fee (see 17 ECF No. 4). The court has reviewed the petition pursuant to Habeas Rule 4 and directs 18 that it be served on respondents. 19 A petition for federal habeas corpus should include all claims for relief of which 20 petitioner is aware. If petitioner fails to include such a claim in his petition, he may be 21 forever barred from seeking federal habeas relief upon that claim. See 28 U.S.C. 22 §2254(b) (successive petitions). If petitioner is aware of any claim not included in his 23 petition, he should notify the court of that as soon as possible, perhaps by means of a 24 motion to amend his petition to add the claim. 25 Alvarez has also submitted a motion for appointment of counsel (ECF No. 1-2). 26 There is no constitutional right to appointed counsel for a federal habeas corpus 27 proceeding. Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); Bonin v. Vasquez, 999 1 discretionary. Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir.1986), cert. denied, 481 2 U.S. 1023 (1987); Bashor v. Risley, 730 F.2d 1228, 1234 (9th Cir.), cert. denied, 469 3 U.S. 838 (1984). However, counsel must be appointed if the complexities of the case 4 are such that denial of counsel would amount to a denial of due process, and where the 5 petitioner is a person of such limited education as to be incapable of fairly presenting his 6 claims. See Chaney, 801 F.2d at 1196; see also Hawkins v. Bennett, 423 F.2d 948 (8th 7 Cir.1970). Here, Alvarez’s petition presents his claims in a reasonably clear manner, 8 and the legal issues do not appear to be particularly complex. Therefore, counsel is not 9 justified. Alvarez’s motion is denied at this time. 10 IT IS THEREFORE ORDERED that the Clerk detach, file, and 11 ELECTRONICALLY SERVE the petition (ECF No. 1-1) on the respondents. 12 IT IS FURTHER ORDERED that the Clerk add Aaron D. Ford, Nevada Attorney 13 General, as counsel for respondents and provide respondents an electronic copy of all 14 items previously filed in this case by regenerating the Notice of Electronic Filing to the 15 office of the AG only. 16 IT IS FURTHER ORDERED that the Clerk detach and file petitioner’s motion for 17 appointment of counsel (ECF No. 1-2). 18 IT IS FURTHER ORDERED that the motion for counsel is DENIED. 19 IT IS FURTHER ORDERED that respondents must file a response to the petition, 20 including potentially by motion to dismiss, within 90 days of service of the petition, with 21 any requests for relief by petitioner by motion otherwise being subject to the normal 22 briefing schedule under the local rules. Any response filed is to comply with the 23 remaining provisions below, which are entered pursuant to Habeas Rule 5. 24 IT IS FURTHER ORDERED that any procedural defenses raised by respondents 25 in this case be raised together in a single consolidated motion to dismiss. In other 26 words, the court does not wish to address any procedural defenses raised herein either 27 in seriatum fashion in multiple successive motions to dismiss or embedded in the 1 potential waiver. Respondents should not file a response in this case that consolidates 2 their procedural defenses, if any, with their response on the merits, except pursuant to 3 28 U.S.C. § 2254(b)(2) as to any unexhausted claims clearly lacking merit. If 4 respondents do seek dismissal of unexhausted claims under § 2254(b)(2): (a) they will 5 do so within the single motion to dismiss not in the answer; and (b) they will specifically 6 direct their argument to the standard for dismissal under § 2254(b)(2) set forth in 7 Cassett v. Stewart, 406 F.3d 614, 623-24 (9th Cir. 2005). In short, no procedural 8 defenses, including exhaustion, should be included with the merits in an answer. All 9 procedural defenses, including exhaustion, instead must be raised by motion to dismiss. 10 IT IS FURTHER ORDERED that, in any answer filed on the merits, respondents 11 specifically cite to and address the applicable state court written decision and state 12 court record materials, if any, regarding each claim within the response as to that claim. 13 IT IS FURTHER ORDERED that petitioner has 45 days from service of the 14 answer, motion to dismiss, or other response to file a reply or opposition, with any other 15 requests for relief by respondents by motion otherwise being subject to the normal 16 briefing schedule under the local rules. 17 IT IS FURTHER ORDERED that any additional state court record exhibits filed 18 herein by either petitioner or respondents be filed with a separate index of exhibits 19 identifying the exhibits by number. The parties will identify filed CM/ECF attachments 20 by the number or numbers of the exhibits in the attachment. 21 22 23 24 25 26 27 1 IT IS FURTHER ORDERED that, at this time, the parties send courtesy copies of 2 any responsive pleading or motion and all INDICES OF EXHIBITS ONLY to the 3 Reno Division of this court. Courtesy copies shall be mailed to the Clerk of Court, 400 4 S. Virginia St., Reno, NV, 89501, and directed to the attention of “Staff Attorney” on the 5 outside of the mailing address label. No further courtesy copies are required unless 6 and until requested by the court. 7 8 DATED: 8 February 2021. 9

10 KENT J. DAWSON UNITED STATES DISTRICT JUDGE 11

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