Naylor v. Williams

Opinion

1 2 3 4 5 6 UNITED STATES DISTRICT COURT

7 DISTRICT OF NEVADA

8 * * * 9 JEREMY NAYLOR, Case No. 2:20-cv-00912-GMN-EJY

10 Petitioner, ORDER

11 v. 12 BRIAN WILLIAMS, et al., 13 Respondents. 14

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

12 GLORIA M. NAVARRO UNITED STATES DISTRICT JUDGE 13

14 15 16 17 18 19 20 21 22 23 24 25 26 27