Perry v. Warden Gabriela Najera

• Court: District Court, D. Nevada
• Decided: June 14, 2023
• Docket: 2:23-cv-00311
• Status: Unknown

Opinion

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5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 GENARO RICHARD PERRY, Case No.: 2:23-cv-00311-GMN-EJY

9 Petitioner Order Directing Service of the Petition and Denying Motion for Counsel 10 v. (ECF No. 8) 11 WARDEN GABRIEL NAJERA,

12 Respondent.

13 The court has reviewed Genaro Richard Perry’s pro se 28 U.S.C. § 2254 petition 14 for a writ of habeas corpus pursuant to Rule 4 of the Rules Governing Habeas Corpus 15 Cases Under Section 2254 and directs that it be served on respondents. A petition for 16 federal habeas corpus should include all claims for relief of which petitioner is aware. If 17 petitioner fails to include such a claim in his petition, he may be forever barred from 18 seeking federal habeas relief upon that claim. See 28 U.S.C. §2244(b) (successive 19 petitions). If petitioner is aware of any claim not included in his petition, he should notify 20 the court of that as soon as possible, perhaps by means of a motion to amend his 21 petition to add the claim. 22 Perry has also filed a motion for appointment of counsel. (ECF No. 8.) There is 23 no constitutional right to appointed counsel in a federal habeas corpus 1 proceeding. Luna v. Kernan, 784 F.3d 640, 642 (9th Cir. 2015) (citing Lawrence v. 2 Florida, 549 U.S. 327, 336–37 (2007)). Whenever the court determines that 3 the interests of justice so require, counsel may be appointed to any financially eligible 4 person who is seeking habeas corpus relief. 18 U.S.C. § 3006A(a)(2)(B). “[T]he district

5 court must evaluate the likelihood of success on the merits as well as the ability of the 6 petitioner to articulate his claims pro se in light of the complexity of the legal issues 7 involved.” Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Here, Perry’s petition 8 sets forth his claims for relief clearly, and the legal issues do not appear to be 9 particularly complex. The court concludes that counsel is not warranted. 10 IT IS THEREFORE ORDERED that the Clerk of Court file and electronically 11 serve the petition (ECF No. 1-1) on the respondents. 12 IT IS FURTHER ORDERED that the Clerk add Aaron D. Ford, Nevada Attorney 13 General, as counsel for respondents and provide respondents an electronic copy of all 14 items previously filed in this case by regenerating the Notice of Electronic Filing to the

15 office of the AG only. 16 IT IS FURTHER ORDERED that petitioner’s motion for appointment of counsel 17 (ECF No. 8) is DENIED. 18 IT IS FURTHER ORDERED that respondents file a response to the petition, 19 including potentially by motion to dismiss, within 90 days of service of the petition, with 20 any requests for relief by petitioner by motion otherwise being subject to the normal 21 briefing schedule under the local rules. Any response filed is to comply with the 22 remaining provisions below, which are entered pursuant to Habeas Rule 5. 23 1 IT IS FURTHER ORDERED that any procedural defenses raised by respondents 2 in this case be raised together in a single consolidated motion to dismiss. In other 3 words, the court does not wish to address any procedural defenses raised herein either 4 in seriatum fashion in multiple successive motions to dismiss or embedded in the

5 answer. Procedural defenses omitted from such motion to dismiss will be subject to 6 potential waiver. Respondents should not file a response in this case that consolidates 7 their procedural defenses, if any, with their response on the merits, except pursuant to 8 28 U.S.C. § 2254(b)(2) as to any unexhausted claims clearly lacking merit. If 9 respondents do seek dismissal of unexhausted claims under § 2254(b)(2): (a) they will 10 do so within the single motion to dismiss not in the answer; and (b) they will specifically 11 direct their argument to the standard for dismissal under § 2254(b)(2) set forth in 12 Cassett v. Stewart, 406 F.3d 614, 623-24 (9th Cir. 2005). In short, no procedural 13 defenses, including exhaustion, should be included with the merits in an answer. All 14 procedural defenses, including exhaustion, instead must be raised by motion to dismiss.

15 IT IS FURTHER ORDERED that, in any answer filed on the merits, respondents 16 specifically cite to and address the applicable state court written decision and state 17 court record materials, if any, regarding each claim within the response to that claim. 18 IT IS FURTHER ORDERED that petitioner has 45 days from service of the 19 answer, motion to dismiss, or other response to file a reply or opposition, with any other 20 requests for relief by respondents by motion otherwise being subject to the normal 21 briefing schedule under the local rules. 22 IT IS FURTHER ORDERED that any additional state court record exhibits filed 23 herein by either petitioner or respondents be filed with a separate index of exhibits 1 identifying the exhibits by number. The parties will identify filed CM/ECF attachments by 2 the number and will file each exhibit as a separate attachment. 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 are to 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 11 DATED: 14 June 2023. 12

13 GLORIA M. NAVARRO UNITED STATES DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23