Austin v. Gittere

Opinion

5 * * *

6 ABRAHAM AUSTIN, Case No. 3:19-cv-00346-MMD-CBC

7 Petitioner, ORDER v. 8 WARDEN BILL GITTERE, et al., 9 Respondents. 10 11 12 On August 6, 2019, the Court reviewed Petitioner Abraham Austin’s 28 U.S.C. § 13 2254 habeas corpus petition, ordered the Clerk to file the petition, and directed 14 Respondents to file a responsive pleading (see ECF No. 5). 15 Petitioner has sent a letter to the Court expressing confusion because he also filed 16 another petition in case number 2:19-cv-00468-APG-VCF challenging the same judgment 17 of conviction. That petition was dismissed, and judgment was entered. Austin v. State of 18 Nevada, 2:19-cv-00468-APG-VCF, ECF Nos. 10, 11. 19 First, the Court stresses that parties must not communicate with the Court via 20 letter. A document requesting a court order (including seeking clarification of an order) 21 must be styled as a motion, not a letter. See Fed. R. Civ. P. 7. 22 Here, in the interests of judicial efficiency, Petitioner’s letter will be filed and 23 docketed as a motion for clarification. Second, the motion as construed is granted. The 24 Court clarifies that litigation is proceeding in this case. (See ECF No. 5). Case number 25 2:19-cv-00468-APG-VCF is closed. 26 Finally, the Court notes that any further letters to the judge will be disregarded. 27 It is ordered that the Clerk shall file Petitioner’s letter dated October 23, 2019 and 28 docket it as motion for clarification. 1 It is further ordered that the motion for clarification is granted as set forth in this 2 order. 3 4 DATED THIS 15 day of November 2019. 5 ( Che) 7 CHIEF UNITED STATES DISTRICT JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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United States District Court District of Nevada Notice of Electronic Filing The following transaction was entered on 10/23/2019 at 8:06 AM PDT and filed on 10/22/2019 Case Name: Austin v. State of Nevada et al Case Number: Filer: WARNING: CASE CLOSED on 10/22/2019 Document Number: 10 Docket Text: ORDER. IT IS ORDERED that this action is A certificate of appealability is DENIED. IT IS FURTHER ORDERED that the Clerk of Court is further directed tc enter final judgment accordingly. (Copies have been distributed pursuant to t NEF - Encl.: two copies of the inmate IFP application and the form for 28 U.S.C. § 2254 petition: ADR)

2:19-cv-00468-APG-VCF Notice has been electronically mailed to: 2:19-cv-00468-APG-VCF Notice has been delivered by other means to: Abraham Austin 1132483 HC 67-50 Wells, NV 89835 The following document(s) are associated with this transaction: Document description: Main Document Original filename:n/a Electronic document Stamp: [STAMP dceecfStamp_ID=1101333072 [Date=10/23/2019] [FileNumber=9470544- 0] [6aba5fa9e2bd93 bbeaab60cfl 6fla8ce3cdd850399d620c5c93bc7d7467acefes4 £87a6b61fc243a5 18f8849628a7b8621b34b6122fc9df85 1c25da9885dad3b]]

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Z DISTRICT OF NEVADA 3] ABRAHAM AUSTIN, (Case No. 2:19-cv-00468-APG-VCEF 4 Petitioner, ORDER V. 5 ISTATE OF NEVADA, et al., 6 Respondents. 7 8 This is a pro se petition for writ of habeas corpus filed under 28 U.S.C. § 2254 by 9!) Abraham Austin, a Nevada state prisoner. The filing fee has been paid. I now conduct a 10 preliminary review pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United 11}! States District Courts. I also consider Austin’s motion for appointment of counsel. 12 While the amended petition remains deficient because it names the wrong respondent, I 13)! will allow Austin one final opportunity to name the correct respondent: the warden or director of the institution where he is being housed.’ If Austin fails to do so, this action will be dismissed without prejudice and without further advance notice, notwithstanding the fact it has been served 16}! on the respondents and a response directed. 17 I deny Austin’s motion for appointment of counsel because counsel is not justified here. 18) There is no constitutional right to appointed counsel for a federal habeas corpus proceeding. 19 Pennsylvania v. Finley, 481 U.S. 551, 555 (1987): Bonin v. Vasquez, 999 F.2d 425, 428 (9th 201 Cir, 1993). The decision to appoint counsel is generally discretionary. Chaney v. Lewis, 801 F.2d 2111191, 1196 (9th Cir.1986), cert. denied, 481 U.S. 1023 (1987); Bashor v. Risley, 730 F.2d 1228,

3 'T do so because it appears that Austin attempted to comply with my prior order directing him to file an amended petition naming the correct respondent. While he filed an amended petition, he continues to name the wrong respondent.

1234 (9th Cir.), cert. denied, 469 U.S. 838 (1984). But counsel must be appointed if the complexities of the case are such that denial of counsel would amount to a denial of due process, 3 and where the petitioner is a person of such limited education as to be incapable of fairly 4 presenting his claims. See Chaney, 801 F.2d at 1196; see also Hawkins v. Bennett, 423 F.2d 948 (8th Cir.1970). Here, the petition is sufficiently clear in presenting the issues, and the legal issues are not particularly complex. Therefore, counsel is not justified. 7 It is therefore ordered that petitioner’s motion for appointment of counsel (ECF No. 2) is 8 denied. 9 It is further ordered that petitioner will file an amended petition naming as respondent the warden or director of the institution where he is being housed by August 11/20, 2019. Failure to do so will result in the dismissal of the petition without further notice. 12 It is further ordered that the Clerk shall add Nevada Attorney General Aaron D. Ford as 13 attorney for the respondents and shall informally electronically serve the Nevada Attorney General with a copy of the petition and this order. 15 It is further ordered that the respondents shall file a response to the amended petition, including potentially by motion to dismiss, by October 15, 2019, and that Austin may file a 17 reply thereto within 30 days of service of the answer. The response and reply time to any motion filed by either party, including a motion filed in lieu of a pleading, shall be governed by Local Rule LR 7-2(b). 20 It is further ordered that any procedural defenses raised by the respondents shall be 21 /asserted together in a single consolidated motion to dismiss. The respondents shall not file a response that consolidates their procedural defenses, if any, with their response on the merits, except pursuant to 28 U.S.C. § 2254(b)(2) as to any unexhausted claims clearly lacking merit. If

the respondents seek dismissal of unexhausted claims under § 2254(b)(2): (a) they shall do so 2 within the single motion to dismiss not in the answer; and (b) they shall specifically direct their 3 argument to the standard for dismissal under § 2254(b}(2) set forth in Cassett v. Stewart, 406 Al P.3d 614, 623-24 (9th Cir. 2005). All procedural defenses, including exhaustion, must be raised 5 by motion to dismiss. 6 It is further ordered that, in any answer filed on the merits, the respondents shall 7 specifically cite to and address the applicable state court written decision and state court record 8} materials, if any, regarding each claim within the response as to that claim. 9 It is further ordered that the respondents shall file a set of state court exhibits relevant to 10] the response filed to the petition, in chronological order and indexed as discussed, infra. 11 It is further ordered that all state court record exhibits filed herein shall be filed with a separate index of exhibits identifying the exhibits by number. The CM/ECF attachments that are filed further shall be identified by the number or numbers of the exhibits in the attachment. The 14] purpose of this provision is so that the court and any reviewing court thereafter will be able to quickly determine from the face of the electronic docket sheet which numbered exhibits are filed which attachments. 17 The Clerk of Court shall send petitioner a copy of his amended petition (ECF No. 8) and 18]/a copy of the form for 28 U.S.C. § 2254 petitions. 19 Dated: August 1, 2019. . 20 21 ANDREWP. GORDON UNITED STATES DISTRICT JUDGE 22 23

1 . 3 5 8 ed 9] ABRAHAM AUSTIN, Case No. 3:19-cv-00346-MMD-CBC 10 Petitioner, ORDER ul V. □ WARDEN BILL GITTERE, et al., □ Respondents. 13 44 Petitioner Abraham Austin has filed a 28 U.S.C. § 2254 habeas corpus petition 45 and has now paid the filing fee (see ECF Nos. 1-1, 4). The Court has reviewed the Petition pursuant to Habeas Rule 4, and it will be served on Respondents. 17 A petition for federal habeas corpus should include all claims for relief of which 18 Petitioner is aware. If Petitioner fails to include such a claim in his Petition, he may be forever barred from seeking federal habeas relief upon that claim. See 28 U.S.C. 20 §2254(b) (successive petitions). if Petitioner is aware of any claim not included in his Petition, he should notify the Court of that as soon as possible, perhaps by means of a 29 motion to amend his petition to add the claim. □□ 23 Austin also has submitted a motion for appointment of counsel (ECF No. 1-2). 24} There is no constitutional right to appointed counsel for a federal habeas corpus 25 proceeding. Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); Bonin v. Vasquez, 999 26 F.2d 425, 428 (9th Cir.1993). The decision to appoint counsel is generally discretionary. 27 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

1{| are such that denial of counsel would amount to a denial of due process, and where the 2 petitioner is a person of such limited education as to be incapable of fairly presenting his 3 claims. See Chaney, 801 F.2d at 1196; see also Hawkins v. Bennett, 423 F.2d 948 (8th 4 Cir.1970). Here, Austin’s petition clearly presents the issues that he wishes to raise, and 5 the legal issues do not appear to be particularly complex. Therefore, counsel is not justified. Austin’s motion is denied. 7 Additionally the Court notes that no courtesy copies—except as specified at the 8 conclusion of this order—are required in this case at this time. 9 It is therefore ordered that the Clerk detach, file and electronically serve the Petition (ECF No. 1-1} on Respondents. 11 it is further ordered that the Clerk add Aaron D. Ford, Nevada Attorney General, as counsel for Respondents. □ 13 It is further ordered that the Clerk detach and file Petitioner's motion for 14] appointment of counsel (ECF No. 1-2). 15 It is further ordered that Petitioner's motion for appointment of counsel (ECF No. 16 1-2) is denied, 17 It is further ordered that Respondents file a response to the Petition, including . potentially by motion to dismiss, within 90 days of service of the Petition, with any requests 19 for relief by Petitioner by motion otherwise being subject to the normal briefing schedule 20]; under the local rules. Any response filed must comply with the remaining provisions 21 below, which are entered pursuant to Habeas Rule 5. 22 It is further ordered that any procedural defenses raised by Respondents in this case must be raised together in a single consolidated motion to dismiss. In other words, 24 the Court does not wish to address any procedural defenses raised herein either in seriatum fashion in multiple successive motions to dismiss or embedded in the answer. Procedural defenses omitted from such motion to dismiss will be subject to potential waiver. Respondents must not file a response in this case that consolidates their 28 procedural defenses, if any, with their response on the merits, except pursuant to 28

U.S.C. § 2254(b)(2) as to any unexhausted claims clearly lacking merit. If Respondent: 2 do seek dismissal of unexhausted claims under § 2254(b)(2): (a) they must do so withir 3) the single motion to dismiss not in the answer; and (b) they must specifically direct thei 4 ; argument to the standard for dismissal under § 2254(b)(2) set forth in Cassett v. Stewart 406 F.3d 614, 623-24 (9th Cir. 2005). In short, no procedural defenses, including 6} exhaustion, will be included with the merits in an answer. All procedural defenses, including exhaustion, instead must be raised by motion to dismiss. 8 It is further ordered that, in any answer filed on the merits, Respondents must 9! specifically cite to and address the applicable state court written decision and state court 10] record materials, if any, regarding each claim within the response as to that claim. 11 It is further ordered that Petitioner will have 45 days from service of the answer, 12 motion to dismiss, or other response to file a reply or opposition, with any other requests 13] for relief by Respondents by motion otherwise being subject to the normal briefing schedule under the local rules. . 15 It is further ordered that any additional state court record exhibits filed herein by 16 either Petitioner or Respondents must be filed with a separate index of exhibits identifying 17 the exhibits by number. The CM/ECF attachments that are filed further must be identified 18) by the number or numbers of the exhibits in the attachment. 19 It is further ordered that, at this time, the parties must send courtesy copies of any responsive pleading or motion and all indices of exhibits only to the Reno Division of this Court. Courtesy copies should be mailed to the Clerk of Court, 400 S. Virginia St., Reno, 24 NV.89501, and directed to the attention of “Staff Attorney” on the outside of the mailing address label. No further courtesy copies are required unless and until requested by the court. 25 DATED THIS 6" day of August 2019, 26 ( ) 27 IRANDA M. DU 98 UNITED STATES DISTRICT JUDGE