Porter v. Garrett

• Court: District Court, D. Nevada
• Decided: March 30, 2022
• Docket: 3:22-cv-00089
• Status: Unknown

Opinion

6 UNITED STATES DISTRICT COURT

7 DISTRICT OF NEVADA

8 * * *

9 DANIEL S. PORTER, Case No. 3:22-cv-00089-RCJ-CLB

10 Petitioner, ORDER v. 11 GARRETT, et al., 12 Respondents. 13 14 Daniel S. Porter has submitted a pro se petition for writ of habeas corpus, 15 pursuant to 28 U.S.C. § 2254 (ECF No. 1-1). He has now paid the filing fee. The court 16 has reviewed the petition pursuant to Habeas Rule 4, and it will be docketed and served 17 on respondents. 18 A petition for federal habeas corpus should include all claims for relief of which 19 petitioner is aware. If petitioner fails to include such a claim in his petition, he may be 20 forever barred from seeking federal habeas relief upon that claim. See 28 U.S.C. 21 §2254(b) (successive petitions). If petitioner is aware of any claim not included in his 22 petition, he should notify the court of that as soon as possible, perhaps by means of a 23 motion to amend his petition to add the claim. 24 Petitioner has also submitted a motion for appointment of counsel (ECF No. 1-2). 25 There is no constitutional right to appointed counsel for a federal habeas corpus 26 proceeding. Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); Bonin v. Vasquez, 999 27 F.2d 425, 428 (9th Cir.1993). The decision to appoint counsel is generally discretionary. Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir.1986), cert. denied, 481 U.S. 1023 1 (1987); Bashor v. Risley, 730 F.2d 1228, 1234 (9th Cir.), cert. denied, 469 U.S. 838 2 (1984). However, counsel must be appointed if the complexities of the case are such 3 that denial of counsel would amount to a denial of due process, and where the petitioner 4 is a person of such limited education as to be incapable of fairly presenting his claims. 5 See Chaney, 801 F.2d at 1196; see also Hawkins v. Bennett, 423 F.2d 948 (8th 6 Cir.1970). Here, Porter was convicted of several counts of sexual assault with a deadly 7 weapon and sentenced to an aggregate of 745 months to life. The legal issues he seeks 8 to raise may be complex, including the victim’s identification of Porter as the perpetrator. 9 In order to ensure due process, the court grants Porter’s motion for counsel. 10 IT IS THEREFORE ORDERED that the Clerk of Court detach, file, and 11 electronically 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 the Clerk detach and file petitioner’s motion for 17 appointment of counsel (ECF No. 1-2). 18 IT IS FURTHER ORDERED that petitioner’s motion for appointment of counsel is 19 GRANTED. 20 IT IS FURTHER ORDERED that the Federal Public Defender for the District of 21 Nevada (FPD) is appointed to represent petitioner. 22 IT IS FURTHER ORDERED that the Clerk ELECTRONICALLY SERVE the FPD 23 a copy of this order, together with a copy of the petition for writ of habeas corpus (ECF 24 No. 1-1). The FPD has 30 days from the date of entry of this order to file a notice of 25 appearance or to indicate to the court its inability to represent petitioner in these 26 proceedings. 27 1 IT IS FURTHER ORDERED that after counsel has appeared for petitioner in this 2 case, the court will issue a scheduling order, which will, among other things, set a 3 deadline for the filing of an amended petition. 5 DATED: 30 March 2022. ° Senn. 7 BERT ONES 3 UNITED TES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28