3 UNITED STATES DISTRICT COURT
4 DISTRICT OF NEVADA
5 SEAN E. COOTS, Case No. 3:19-cv-00689-LRH-CLB
6 Petitioner, v. ORDER 7 ISIDRO BACA, et al., 8 Respondents. 9 10 This habeas matter comes before the Court for consideration of pro se Petitioner Sean E. 11 Coots’s Application to Proceed In Forma Pauperis (ECF No. 1) and Motion for Appointment of 12 Counsel (ECF No. 1-2), and for preliminary review pursuant to Rule 4 of the Rules Governing 13 Section 2254 Cases.1 For the reasons discussed below, the Court denies the pauper application and 14 motion for counsel and directs Coots to pay the filing fee and amend his petition within 30 days. 15 I. IFP APPLICATION 16 Pursuant to 28 U.S.C. § 1915 and LSR 1-1 of the Local Rules of Practice, any person who 17 is unable to prepay the fees in a civil case may request permission to proceed in forma pauperis 18 (“IFP”). Indigent prisoners who do not have the money to pay the five dollar ($5.00) filing fee for 19 a § 2254 habeas petition may apply for IFP status. A prisoner’s IFP application must be submitted 20 on the form provided by the court and include specific financial documents. 28 U.S.C. § 1915; 21 LSR 1-1, LSR 1-2. 22 After considering the IFP application, the Court finds that Coots is able to pay the $5 filing 23 fee. In particular, the Court notes that Coots’s financial certificate states that he has a current 24 balance of $501.00 in his inmate trust account and he receives average monthly deposits of 25 $283.33. (ECF No. 1 at 4.) The IFP application will therefore be denied. Coots will have 30 days 26 1 All references to a “Habeas Rule” or the “Habeas Rules” in this order identify the Rules 27 Governing Section 2254 Cases in the United States District Courts. 1 from the date of this order to have the $5 filing fee sent to the Clerk of Court. 2 II. MOTION FOR APPOINTMENT OF COUNSEL 3 Coots seeks the appointment of counsel to assist him in this habeas proceedings. There is 4 no constitutional right to appointed counsel in a federal habeas corpus proceeding. Luna v. Kernan, 5 784 F.3d 640, 642 (9th Cir. 2015) (citing Lawrence v. Florida, 549 U.S. 327, 336–37 (2007)). 6 However, an indigent petitioner seeking relief under 28 U.S.C. § 2254 may request the 7 appointment of counsel to pursue that relief.2 18 U.S.C. § 3006A(a)(2)(B). The court has discretion 8 to appoint counsel when the interests of justice so require. 18 U.S.C. § 3006A(a)(2). The interests 9 of justice so require “when the complexities of the case are such that denial of counsel would 10 amount to a denial of due process.” Brown v. United States, 623 F.2d 54, 61 (9th Cir. 1980). In the 11 absence of such circumstances, a request for counsel in a § 2254 proceeding is addressed to the 12 sound discretion of the district court. Id. (citing Dillon v. United States, 307 F.2d 445, 447 (9th 13 Cir. 1962)). When a habeas petitioner has a good understanding of the issues and the ability to 14 present forcefully and coherently his contentions, no attorney is legally required. LaMere v. Risley, 15 827 F.2d 622, 626 (9th Cir. 1987). 16 Coots’s motion, submitted on a prison form, argues that the complexities of the issues in 17 relation to his lengthy sentence implicate a need for counsel to promote fairness and justice. (ECF 18 No. 1-2.) He asserts that he is unable to afford counsel and his incarceration will impede his ability 19 to pursue his habeas claims. Counsel would assist Coots in presenting substantive and procedural 20 issues and ease the Court’s task of discerning the issues. 21 Here, Coots has not established that the interests of justice require the appointment of 22 counsel. Based on the state appellate record and the petition, the Court finds that the facts alleged 23 and legal issues raised are not especially complex. Since commencing this habeas action, Coots 24 has submitted multiple filings and a 72-page petition, demonstrating sufficient ability to write and 25
26 2 An “indigent” petitioner is a person “who is too poor to hire a lawyer and who, upon indictment, becomes eligible to receive aid from a court-appointed attorney and a waiver of court costs.” 27 Black’s Law Dictionary (10th ed. 2014). 1 articulate his claims. Although Coots’s lengthy sentence might weigh in favor of counsel, he has 2 not substantiated the bare allegation that the substantive and procedural issues in this case are too 3 complex for his comprehension and abilities. As to investigation or discovery, the Court’s review 4 of a 28 U.S.C. § 2254 petition is generally limited to the record that was before the state courts. 5 Cullen v. Pinholster, 563 U.S. 170, 181–82 (2011). At this juncture the Court cannot determine 6 whether circumstances exist in this case that would nonetheless justify a grant of discovery, and 7 the Court will not appoint counsel based on a speculative possibility of discovery. Coots has not 8 shown that denial of counsel would violate due process, and the motion is denied. 9 III. AMENDING THE PETITION 10 Coots has not filed his petition on the appropriate form or in substantial compliance with 11 the form. The Habeas Rules require that a petition: (1) specify all the grounds for relief available 12 to the petitioner, (2) state the facts supporting each ground, (3) state the relief requested, (4) be 13 printed, typewritten, or legibly handwritten, and (5) be signed under penalty of perjury by the 14 petitioner. Habeas Rule 2(c). To comply with this rule, a petitioner must state specific 15 particularized facts that entitle him to habeas relief for each ground alleged. Mayle v. Felix, 545 16 U.S. 644, 649 (2005). The facts alleged must provide sufficient detail to enable the court to 17 determine, from the face of the petition alone, whether the petition should proceed. Adams v. 18 Armontrout, 897 F.2d 332, 334 (8th Cir. 1990). However, “a habeas petition should not resemble 19 a treatise. Effective writing is concise writing.” Spaziano v. Singletary, 36 F.3d 1028, 1031 n.2 20 (11th Cir. 1994) (noting that a 376-page habeas petition did not comply with Habeas Rule 2(c) 21 because of its “prolixity,” i.e., use of more words than necessary to express a thought).3 22 Additionally, pro se petitioners are required to submit their petition on the court’s approved 23 form or substantially follow the model form provided in the appendix of forms to the Habeas Rules. 24
3 Cf. Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1058 (9th Cir.
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3 UNITED STATES DISTRICT COURT
4 DISTRICT OF NEVADA
5 SEAN E. COOTS, Case No. 3:19-cv-00689-LRH-CLB
6 Petitioner, v. ORDER 7 ISIDRO BACA, et al., 8 Respondents. 9 10 This habeas matter comes before the Court for consideration of pro se Petitioner Sean E. 11 Coots’s Application to Proceed In Forma Pauperis (ECF No. 1) and Motion for Appointment of 12 Counsel (ECF No. 1-2), and for preliminary review pursuant to Rule 4 of the Rules Governing 13 Section 2254 Cases.1 For the reasons discussed below, the Court denies the pauper application and 14 motion for counsel and directs Coots to pay the filing fee and amend his petition within 30 days. 15 I. IFP APPLICATION 16 Pursuant to 28 U.S.C. § 1915 and LSR 1-1 of the Local Rules of Practice, any person who 17 is unable to prepay the fees in a civil case may request permission to proceed in forma pauperis 18 (“IFP”). Indigent prisoners who do not have the money to pay the five dollar ($5.00) filing fee for 19 a § 2254 habeas petition may apply for IFP status. A prisoner’s IFP application must be submitted 20 on the form provided by the court and include specific financial documents. 28 U.S.C. § 1915; 21 LSR 1-1, LSR 1-2. 22 After considering the IFP application, the Court finds that Coots is able to pay the $5 filing 23 fee. In particular, the Court notes that Coots’s financial certificate states that he has a current 24 balance of $501.00 in his inmate trust account and he receives average monthly deposits of 25 $283.33. (ECF No. 1 at 4.) The IFP application will therefore be denied. Coots will have 30 days 26 1 All references to a “Habeas Rule” or the “Habeas Rules” in this order identify the Rules 27 Governing Section 2254 Cases in the United States District Courts. 1 from the date of this order to have the $5 filing fee sent to the Clerk of Court. 2 II. MOTION FOR APPOINTMENT OF COUNSEL 3 Coots seeks the appointment of counsel to assist him in this habeas proceedings. There is 4 no constitutional right to appointed counsel in a federal habeas corpus proceeding. Luna v. Kernan, 5 784 F.3d 640, 642 (9th Cir. 2015) (citing Lawrence v. Florida, 549 U.S. 327, 336–37 (2007)). 6 However, an indigent petitioner seeking relief under 28 U.S.C. § 2254 may request the 7 appointment of counsel to pursue that relief.2 18 U.S.C. § 3006A(a)(2)(B). The court has discretion 8 to appoint counsel when the interests of justice so require. 18 U.S.C. § 3006A(a)(2). The interests 9 of justice so require “when the complexities of the case are such that denial of counsel would 10 amount to a denial of due process.” Brown v. United States, 623 F.2d 54, 61 (9th Cir. 1980). In the 11 absence of such circumstances, a request for counsel in a § 2254 proceeding is addressed to the 12 sound discretion of the district court. Id. (citing Dillon v. United States, 307 F.2d 445, 447 (9th 13 Cir. 1962)). When a habeas petitioner has a good understanding of the issues and the ability to 14 present forcefully and coherently his contentions, no attorney is legally required. LaMere v. Risley, 15 827 F.2d 622, 626 (9th Cir. 1987). 16 Coots’s motion, submitted on a prison form, argues that the complexities of the issues in 17 relation to his lengthy sentence implicate a need for counsel to promote fairness and justice. (ECF 18 No. 1-2.) He asserts that he is unable to afford counsel and his incarceration will impede his ability 19 to pursue his habeas claims. Counsel would assist Coots in presenting substantive and procedural 20 issues and ease the Court’s task of discerning the issues. 21 Here, Coots has not established that the interests of justice require the appointment of 22 counsel. Based on the state appellate record and the petition, the Court finds that the facts alleged 23 and legal issues raised are not especially complex. Since commencing this habeas action, Coots 24 has submitted multiple filings and a 72-page petition, demonstrating sufficient ability to write and 25
26 2 An “indigent” petitioner is a person “who is too poor to hire a lawyer and who, upon indictment, becomes eligible to receive aid from a court-appointed attorney and a waiver of court costs.” 27 Black’s Law Dictionary (10th ed. 2014). 1 articulate his claims. Although Coots’s lengthy sentence might weigh in favor of counsel, he has 2 not substantiated the bare allegation that the substantive and procedural issues in this case are too 3 complex for his comprehension and abilities. As to investigation or discovery, the Court’s review 4 of a 28 U.S.C. § 2254 petition is generally limited to the record that was before the state courts. 5 Cullen v. Pinholster, 563 U.S. 170, 181–82 (2011). At this juncture the Court cannot determine 6 whether circumstances exist in this case that would nonetheless justify a grant of discovery, and 7 the Court will not appoint counsel based on a speculative possibility of discovery. Coots has not 8 shown that denial of counsel would violate due process, and the motion is denied. 9 III. AMENDING THE PETITION 10 Coots has not filed his petition on the appropriate form or in substantial compliance with 11 the form. The Habeas Rules require that a petition: (1) specify all the grounds for relief available 12 to the petitioner, (2) state the facts supporting each ground, (3) state the relief requested, (4) be 13 printed, typewritten, or legibly handwritten, and (5) be signed under penalty of perjury by the 14 petitioner. Habeas Rule 2(c). To comply with this rule, a petitioner must state specific 15 particularized facts that entitle him to habeas relief for each ground alleged. Mayle v. Felix, 545 16 U.S. 644, 649 (2005). The facts alleged must provide sufficient detail to enable the court to 17 determine, from the face of the petition alone, whether the petition should proceed. Adams v. 18 Armontrout, 897 F.2d 332, 334 (8th Cir. 1990). However, “a habeas petition should not resemble 19 a treatise. Effective writing is concise writing.” Spaziano v. Singletary, 36 F.3d 1028, 1031 n.2 20 (11th Cir. 1994) (noting that a 376-page habeas petition did not comply with Habeas Rule 2(c) 21 because of its “prolixity,” i.e., use of more words than necessary to express a thought).3 22 Additionally, pro se petitioners are required to submit their petition on the court’s approved 23 form or substantially follow the model form provided in the appendix of forms to the Habeas Rules. 24
3 Cf. Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1058 (9th Cir. 2011) 25 (“[W]e have never held—and we know of no authority supporting the proposition—that a pleading 26 may be of unlimited length and opacity. Our cases instruct otherwise.”); McHenry v. Renne, 84 F.3d 1172, 1179–80 (9th Cir. 1996) (recognizing that unduly long and confusing pleadings 27 “impose unfair burdens on litigants and judges”). 1 LSR 3-1; Habeas Rule 2(d). The form is important as it provides the Court with necessary 2 information to conduct preliminary review of the petition. 3 Here, Coots’s 72-page petition contains excessive legal and factual arguments and does not 4 provide a statement of exhaustion for each claim. Accordingly, Coots must, within 30 days of the 5 date of this order, file an amended petition on the Court’s form.4 The Court will defer screening 6 until Coots has fully complied with this order. 7 If Coots chooses to file an amended petition, he is advised to carefully follow the 8 instructions on the form. The amended petition should set forth the claims in short and plain terms, 9 simply, concisely, and directly. This means Coots should avoid lengthy legal and factual argument 10 as well as excessive citations to case law. Instead, he should summarize the information he believes 11 to be relevant in his own words for each claim asserted. Exhibits are not a substitute for a proper 12 petition. Coots should specifically identify what constitutional right he believes was violated for 13 each claim. 14 Additionally, Coots is informed that he cannot refer to a prior pleading (i.e., the original 15 petition) in order to make an amended petition complete. See LR 15-1(a); Ramirez v. County of 16 San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015) (an amended pleading generally supersedes 17 the original). Therefore, an amended petition must re-allege all claims for relief. Any claims that 18 Coots does not re-allege will be waived. King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). 19 IT THEREFORE IS ORDERED: 20 1. Petitioner Sean E. Coots’ Application to Proceed In Forma Pauperis (ECF No. 1) and 21 Motion for Appointment of Counsel (ECF No. 1-2) are DENIED. 22 2. The Clerk of Court is directed to mail Coots two copies of (i) this order, and (ii) the 23 form petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, along with 24 instructions. 25
26 4 Coots at all times remains responsible for calculating the applicable statute of limitations. In ordering petitioner to amend his petition, the Court makes no finding or representation that either 27 the original or amended petition will be considered timely. 1 3. Within 30 days of the date of this order, Coots must: 2 a. pay the $5.00 filing fee and make the necessary arrangements to have a copy of this 3 order attached to the check for the filing fee; and 4 b. file an amended petition that corrects the noted deficiencies. 5 4. Coots must clearly title the amended petition as such by writing the words “FIRST 6 AMENDED” immediately above “Petition for a Writ of Habeas Corpus Pursuant to 28 7 U.S.C. § 2254” on the first page, and including 3:19-cv-0689-LRH-CLB in the space 8 for the case number (“CASE NO.’). 9 5. Coots’s failure to timely comply with this order will result in the dismissal of this action 10 without further advance notice. 11 DATED this 21st day of November, 2019. 12 - 13 LARRY’ HIC 14 UNITED STATES DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28