McFadden v. Williams Sr

• Court: District Court, D. Nevada
• Decided: May 20, 2020
• Docket: 2:20-cv-00374
• Status: Unknown

Opinion

1 2 3 4 5 6 UNITED STATES DISTRICT COURT

7 DISTRICT OF NEVADA

8 * * * 9 DONALD RICHARD MCFADDEN, Case No. 2:20-cv-00374-GMN-BNW

10 Petitioner, ORDER

11 v. 12 BRIAN WILLIAMS, SR., 13 Respondents. 14

15 16 Petitioner Donald Richard McFadden has submitted a 28 U.S.C. § 2254 habeas 17 corpus petition (ECF No. 1-1). His application to proceed in forma pauperis (ECF No. 4) 18 is granted. The court has reviewed the petition pursuant to Habeas Rule 4, and it shall 19 be served on respondents. 20 A petition for federal habeas corpus should include all claims for relief of which 21 petitioner is aware. If petitioner fails to include such a claim in his petition, he may be 22 forever barred from seeking federal habeas relief upon that claim. See 28 U.S.C. 23 24 §2254(b) (successive petitions). If petitioner is aware of any claim not included in his 25 petition, he should notify the court of that as soon as possible, perhaps by means of a 26 motion to amend his petition to add the claim. 27 McFadden has also submitted an ex parte motion for appointment of counsel 1 (ECF No. 1-2). There is no constitutional right to appointed counsel for a federal 2 3 habeas corpus proceeding. Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); Bonin v. 4 Vasquez, 999 F.2d 425, 428 (9th Cir.1993). The decision to appoint counsel is 5 generally discretionary. Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir.1986), cert. 6 denied, 481 U.S. 1023 (1987); Bashor v. Risley, 730 F.2d 1228, 1234 (9th Cir.), cert. 7 denied, 469 U.S. 838 (1984). However, counsel must be appointed if the complexities 8 of the case are such that denial of counsel would amount to a denial of due process, 9 10 and where the petitioner is a person of such limited education as to be incapable of 11 fairly presenting his claims. See Chaney, 801 F.2d at 1196; see also Hawkins v. 12 Bennett, 423 F.2d 948 (8th Cir.1970). Here, the petition presents the issues arising 13 from his guilty plea that McFadden wishes to raise in a reasonably clear manner, and 14 the legal issues do not appear to be particularly complex. Therefore, counsel is not 15 justified. McFadden’s motion is denied. 16 IT IS THEREFORE ORDERED that petitioner’s application to proceed in forma 17 18 pauperis (ECF No. 4) is GRANTED. 19 IT IS FURTHER ORDERED that the Clerk detach, file, and ELECTRONICALLY 20 SERVE the petition (ECF No. 1-1) on the respondents. 21 IT IS FURTHER ORDERED that the Clerk add Aaron D. Ford, Nevada Attorney 22 General, as counsel for respondents. 23 IT IS FURTHER ORDERED that the Clerk detach and file petitioner’s motion for 24 appointment of counsel (ECF No. 1-2). 25 26 IT IS FURTHER ORDERED that the motion for appointment of counsel is 27 DENIED. IT IS FURTHER ORDERED that respondents must file a response to the petition, 1 including potentially by motion to dismiss, within 90 days of service of the petition, with 2 3 any requests for relief by petitioner by motion otherwise being subject to the normal 4 briefing schedule under the local rules. Any response filed is to comply with the 5 remaining provisions below, which are entered pursuant to Habeas Rule 5. 6 IT IS FURTHER ORDERED that any procedural defenses raised by respondents 7 in this case be raised together in a single consolidated motion to dismiss. In other 8 words, the court does not wish to address any procedural defenses raised herein either 9 10 in seriatum fashion in multiple successive motions to dismiss or embedded in the 11 answer. Procedural defenses omitted from such motion to dismiss will be subject to 12 potential waiver. Respondents should not file a response in this case that consolidates 13 their procedural defenses, if any, with their response on the merits, except pursuant to 14 28 U.S.C. § 2254(b)(2) as to any unexhausted claims clearly lacking merit. If 15 respondents do seek dismissal of unexhausted claims under § 2254(b)(2): (a) they will 16 do so within the single motion to dismiss not in the answer; and (b) they will specifically 17 18 direct their argument to the standard for dismissal under § 2254(b)(2) set forth in 19 Cassett v. Stewart, 406 F.3d 614, 623-24 (9th Cir. 2005). In short, no procedural 20 defenses, including exhaustion, should be included with the merits in an answer. All 21 procedural defenses, including exhaustion, instead must be raised by motion to dismiss. 22 IT IS FURTHER ORDERED that, in any answer filed on the merits, respondents 23 specifically cite to and address the applicable state court written decision and state 24 court record materials, if any, regarding each claim within the response as to that claim. 25 26 IT IS FURTHER ORDERED that petitioner has 45 days from service of the 27 answer, motion to dismiss, or other response to file a reply or opposition, with any other requests for relief by respondents by motion otherwise being subject to the normal 1 briefing schedule under the local rules. 2 3 IT IS FURTHER ORDERED that any additional state court record exhibits filed 4 herein by either petitioner or respondents be filed with a separate index of exhibits 5 identifying the exhibits by number. The parties will identify filed CM/ECF attachments 6 by the number or numbers of the exhibits in the attachment. 7 IT IS FURTHER ORDERED that, at this time, the parties send courtesy copies of 8 any responsive pleading or motion and all INDICES OF EXHIBITS ONLY to the 9 10 Reno Division of this court. Courtesy copies shall be mailed to the Clerk of Court, 400 11 S. Virginia St., Reno, NV, 89501, and directed to the attention of “Staff Attorney” on the 12 outside of the mailing address label. No further courtesy copies are required unless 13 and until requested by the court. 14 DATED: 20 May 2020. 15

17 GLORIA M. NAVARRO UNITED STATES DISTRICT JUDGE 18

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