Burns v. Russell

• Court: District Court, D. Nevada
• Decided: March 31, 2022
• Docket: 3:22-cv-00129
• Status: Unknown

Opinion

6 UNITED STATES DISTRICT COURT

7 DISTRICT OF NEVADA

8 * * *

9 DAVID BURNS, Case No. 3:22-cv-00129-LRH-CLB

10 Petitioner, ORDER v. 11 RUSSELL, et al., 12 Respondents. 13 14 David Burns has submitted a pro se petition for writ of habeas corpus, pursuant 15 to 28 U.S.C. § 2254 (ECF Nos. 1-3, 1-4, 1-5, 1-6). His application to proceed in forma 16 pauperis (ECF No. 1) is granted. The court has reviewed the petition pursuant to 17 Habeas Rule 4 and directs that it be docketed and served on respondents. 18 A petition for federal habeas corpus should include all claims for relief of which 19 petitioner is aware. If petitioner fails to include such a claim in his petition, he may be 20 forever barred from seeking federal habeas relief upon that claim. See 28 U.S.C. 21 §2254(b) (successive petitions). If petitioner is aware of any claim not included in his 22 petition, he should notify the court of that as soon as possible, perhaps by means of a 23 motion to amend his petition to add the claim. 24 Petitioner has also submitted a motion for appointment of counsel (ECF No. 1-2). 25 There is no constitutional right to appointed counsel for a federal habeas corpus 26 proceeding. Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); Bonin v. Vasquez, 999 27 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 1 (1987); Bashor v. Risley, 730 F.2d 1228, 1234 (9th Cir.), cert. denied, 469 U.S. 838 2 (1984). However, counsel must be appointed if the complexities of the case are such 3 that denial of counsel would amount to a denial of due process, and where the petitioner 4 is a person of such limited education as to be incapable of fairly presenting his claims. 5 See Chaney, 801 F.2d at 1196; see also Hawkins v. Bennett, 423 F.2d 948 (8th 6 Cir.1970). Here, Burns was convicted by a jury of first-degree murder and sentenced to 7 life without the possibility of parole. The legal issues he seeks to raise appear to be 8 complex and perhaps novel.1 In order to ensure due process, the court grants Burns’ 9 motion for counsel. 10 IT IS THEREFORE ORDERED that petitioner’s application to proceed in forma 11 pauperis (ECF No. 1) is GRANTED. 12 IT IS FURTHER ORDERED that the Clerk of Court detach, file, and electronically 13 serve the petition (ECF Nos. 1-3, 1-4, 1-5, 1-6) on the respondents. 14 IT IS FURTHER ORDERED that the Clerk add Aaron D. Ford, Nevada Attorney 15 General, as counsel for respondents and provide respondents an electronic copy of all 16 items previously filed in this case by regenerating the Notice of Electronic Filing to the 17 office of the AG only. 18 IT IS FURTHER ORDERED that the Clerk detach and file petitioner’s motion for 19 appointment of counsel (ECF No. 1-2). 20 IT IS FURTHER ORDERED that petitioner’s motion for appointment of counsel is 21 GRANTED. 22 IT IS FURTHER ORDERED that the Clerk detach and file petitioner’s motion for 23 extension of time re financial certificate (ECF No. 1-1). 24 IT IS FURTHER ORDERED that petitioner’s motion for extension of time re 25 financial certificate is DENIED as moot. 26 27 1 The court notes that the Nevada Supreme Court concluded that Burns’ counsel had been ineffective in ' IT IS FURTHER ORDERED that the Federal Public Defender for the District of 2 Nevada (FPD) is appointed to represent petitioner. IT IS FURTHER ORDERED that the Clerk ELECTRONICALLY SERVE the FPD ‘ a copy of this order, together with a copy of the petition for writ of habeas corpus (ECF ° Nos. 1-3, 1-4, 1-5, 1-6). The FPD has 30 days from the date of entry of this order to file 6 a notice of appearance or to indicate to the court its inability to represent petitioner in these proceedings. 8 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 "0 deadline for the filing of an amended petition. DATED: 31 March 2022. -

13 ALIA MA. 14 ONTED STATES DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28