Johnson v. Hutchings

• Court: District Court, D. Nevada
• Decided: March 30, 2022
• Docket: 2:21-cv-00707
• Status: Unknown

Opinion

1 UNITED STATES DISTRICT COURT

2 DISTRICT OF NEVADA

3 KYLE JOHNSON, Case No. 2:21-cv-00707-APG-EJY

4 Petitioner, v. ORDER 5 WILLIAM HUTCHINGS, et al., (ECF No. 7) 6 Respondents. 7 8 On August 19, 2021, I ordered Johnson to show cause why the petition in this action should 9 not be dismissed based on his failure to exhaust his claims in state court. ECF No. 6. In response, 10 Johnson appears to assert that Grounds 1 and 2 of his federal habeas petition were also set forth in 11 his state habeas petition as well as in his brief to the state appellate court. ECF No. 7. He further 12 asserts that he does not have a copy of or access to brief to the state appellate court. Id. I conclude 13 that the issue as to whether Johnson’s claims have been exhausted in state court would benefit 14 from further briefing and the state court record. Accordingly, I will direct service of the petition 15 (ECF No. 1-1) and a response. 16 I have further considered Johnson’s request for appointment of counsel, and find that 17 appointment of counsel is not justified, at least not at this juncture. There is no constitutional right 18 to appointed counsel in a federal habeas corpus proceeding. Luna v. Kernan, 784 F.3d 640, 642 19 (9th Cir. 2015) (citing Lawrence v. Florida, 549 U.S. 327, 336–37 (2007)). An indigent petitioner 20 may request appointed counsel to pursue that relief. 18 U.S.C. § 3006A(a)(2)(B). The decision to 21 appoint counsel is generally discretionary. Id. (authorizing appointed counsel “when the interests 22 of justice so require”). Id. § 3006A(a)(2). However, counsel must be appointed if the complexities 23 of the case are such that denial of counsel would amount to a denial of due process, and where the 24 petitioner is so uneducated that he is incapable of fairly presenting his claims. LaMere v. Risley, 25 827 F.2d 622, 626 (9th Cir. 1987); Brown v. United States, 623 F.2d 54, 61 (9th Cir. 1980). 26 The petition in this case appears sufficiently clear in presenting the issues that Petitioner 27 wishes to raise, and the legal issues are not particularly complex. He has demonstrated sufficient 28 ability to write and articulate his claims, submitted numerous filings, and followed instructions to 1 response to the order to show cause. The court appreciates that it is difficult for pro se petitioners 2 to pursue their habeas claims and almost every pro se party would benefit from representation by 3 counsel. However, Petitioner has made no showing as to why denial of counsel would amount to 4 a denial of due process. As such, the motion is denied. 5 I THEREFORE ORDER: 6 1. Petitioner Kyle Johnson’s Motion for Appointment of Counsel (ECF No. 1-3) is 7 DENIED. 8 2. The Clerk of Court is directed to file the petition (ECF No. 1-1). 9 3. The Clerk of the Court is directed to add Aaron Ford, Attorney General of the State of 10 Nevada, as counsel for Respondents and to provide Respondents an electronic copy of 11 all items previously filed in this case by regenerating the Notice of Electronic Filing to 12 the office of the AG only. 13 4. Respondents will have 60 days from the date the petition is electronically served to 14 appear in this action and answer or otherwise respond to the petition. 15 5. If Respondents file an answer to the petition, Petitioner may file a reply within 60 days 16 from the date the answer is filed and served. If Respondents file a motion to dismiss 17 instead of an answer, the parties will brief the motion in accordance with LR 7-2 and 18 7-3 of the Local Rules of Practice. 19 6. Any procedural defenses Respondents raise in this case must be raised together in a 20 single consolidated motion to dismiss. Procedural defenses omitted from such motion 21 to dismiss may be subject to waiver. Respondents will not file a response in this case 22 that consolidates their procedural defenses, if any, with their response on the merits, 23 except pursuant to 28 U.S.C. § 2254(b)(2) as to any unexhausted claims clearly lacking 24 merit. If Respondents seek dismissal of unexhausted claims under § 2254(b)(2), they 25 must do so within the single motion to dismiss, not in the answer, and specifically direct 26 their argument to the standard for dismissal under § 2254(b)(2) as set forth in Cassett 27 v. Stewart, 406 F.3d 614, 623–24 (9th Cir. 2005). In short, no procedural defenses, 28 including exhaustion, will be included with the merits in an answer. All procedural ] defenses, including exhaustion, instead must be raised by motion to dismiss. 2 7. Inany answer filed on the merits, Respondents must specifically cite to and address the 3 applicable state court written decision and state court record materials, if any, regarding 4 each claim within the response as to that claim. 5 8. Respondents must file the state court exhibits relevant to their response to the petition, 6 in chronological order. 7 9. All state court records and exhibits must be filed in accordance with LR IA 10-3 and 8 LR IC 2-2 and include a separate index identifying each exhibit by number or letter. 9 The index must be filed in CM/ECF’s document upload screen as the base document 10 to receive the base docket number (e.g., ECF No. 10). Each exhibit must then be filed 11 as “attachments” to the base document—the index—to receive a sequenced sub-docket 12 number (e.g., Exhibit A (ECF No. 10-1), Exhibit B (ECF No. 10-2), Exhibit C (ECF 13 No. 10-3), and so forth). If the exhibits will span more than one filing, the base 14 document in each successive filing must be either a copy of the index or volume cover 15 page. See LR IC 2-2(a)(3)(A). 16 10. Notwithstanding LR IC 2-2(g), paper copies of any electronically filed exhibits need 17 not be provided to chambers or to the staff attorney, unless later directed by the court. 18 Dated: March 30, 2022 19 —— 20 ANDREW P. GORDON UNITED STATES DISTRICT JUDGE

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