Bautista v. Garrett

• Court: District Court, D. Nevada
• Decided: April 28, 2021
• Docket: 3:20-cv-00403
• Status: Unknown

Opinion

1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 * * * 6 EBERTO BAUTISTA-EREDEA, Case No. 3:20-cv-00403-LRH-CLB

7 Petitioner, ORDER 8 v. 9 GARRETT, et al., 10 Respondents. 11

12 13 28 U.S.C. § 2254 habeas corpus petitioner Eberto Bautista-Eredea has 14 submitted a second motion for appointment of counsel (ECF No. 20) as well as a motion 15 for leave to file an amended petition (ECF No. 21). Respondents have responded to 16 both, and Bautista-Eredea replied (ECF Nos. 23, 24). As discussed below, the court 17 grants both motions. 18 There is no constitutional right to appointed counsel for a federal habeas corpus 19 proceeding. Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); Bonin v. Vasquez, 999 20 F.2d 425, 428 (9th Cir.1993). The decision to appoint counsel is generally 21 discretionary. Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir.1986), cert. denied, 481 22 U.S. 1023 (1987); Bashor v. Risley, 730 F.2d 1228, 1234 (9th Cir.), cert. denied, 469 23 U.S. 838 (1984). However, counsel must be appointed if the complexities of the case 24 are such that denial of counsel would amount to a denial of due process, and where the 25 petitioner is a person of such limited education as to be incapable of fairly presenting his 26 claims. See Chaney, 801 F.2d at 1196; see also Hawkins v. Bennett, 423 F.2d 948 (8th 27 Cir.1970). 1 Bautista-Eredea’s first motion for counsel was a form motion that merely 2 asserted that the issues were too complex for his comprehension (see ECF No. 5). 3 However, because his petition was clear and the remaining legal issues did not appear 4 to be particularly complex, the court concluded that counsel was not warranted (see 5 ECF No. 3). 6 Bautista-Eredea now explains that he speaks Spanish and had an interpreter at 7 his trial (ECF No. 20). He states, through the help of second inmate, that while he 8 intended to raise all issues that he raised in his direct appeal and state postconviction 9 petition, the inmate who assisted him in his original federal petition only raised three 10 grounds for relief. Id. Bautista-Eredea attached a proposed amended petition to his 11 motion for leave to file an amended petition, which appears to include the claims he 12 asserted in his state proceedings (ECF Nos. 21, 21-1). 13 Responding to both motions, respondents state that they reviewed Bautista- 14 Eredea’s state proceedings and confirm that he had an interpreter for his criminal 15 proceedings (ECF No. 23). While they note that they cannot otherwise make any 16 assertions about Bautista-Eredea’s language fluency, they defer to the court with 17 respect to appointment of counsel. They further state that they have no specific 18 objection to Bautista-Eredea filing an amended petition. The court, therefore, grants the 19 motion for appointment of counsel and the motion for leave to file an amended petition. 20 IT IS THEREFORE ORDERED that petitioner’s motion for appointment of 21 counsel (ECF No. 20) is GRANTED. 22 IT IS FURTHER ORDERED that the Federal Public Defender for the District of 23 Nevada (FPD) is appointed to represent petitioner. 24 IT IS FURTHER ORDERED that petitioner’s motion for leave to file an amended 25 petition (ECF No. 21) is GRANTED. The Clerk is directed to detach and FILE the 26 amended petition (ECF No. 21-1). 27 IT IS FURTHER ORDERED that the Clerk ELECTRONICALLY SERVE the FPD 1 corpus (ECF No. 4) and the amended petition (ECF No. 21-1). The FPD has 30 days 2 || from the date of entry of this order to file a notice of appearance or to indicate to the 3 |! court its inability to represent petitioner in these proceedings. 4 IT IS FURTHER ORDERED that after counsel has appeared for petitioner in this 9 case, the court will issue a scheduling order, which will, among other things, set a 6 || deadline for the filing of any further amended petition. IT IS FURTHER ORDERED that respondents’ motion to dismiss (ECF No. 8) is 8 || DISMISSED without prejudice. 9 IT IS FURTHER ORDERED that respondents’ motion for extension of time to 10 respond to the motion for appointment of counsel (ECF No. 22) is GRANTED nunc pro 11 |) tune. 12 DATED this 28th day of April, 2021. A / | - / 13 44 LARRYARHICK UNITED STATES DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28