Rodriguez v. Garrett

Opinion

5 * * *

6 EVARISTO NAVARRO RODRIGUEZ Case No. 3:20-cv-00691-MMD-CLB

7 Petitioner, ORDER v. 8 TIM GARRETT, et al., 9 Respondents. 10 11 Petitioner Evaristo Navarro Rodriguez has submitted a pro se 28 U.S.C. § 2254 12 petition for writ of habeas corpus. He has also paid the filing fee; therefore, his application 13 to proceed in forma pauperis is denied as moot. The Court has reviewed the petition 14 pursuant to Habeas Rule 4, and it will be docketed and served on Respondents. 15 A petition for federal habeas corpus should include all claims for relief of which 16 petitioner is aware. If Petitioner fails to include such a claim in his petition, he may be 17 forever barred from seeking federal habeas relief upon that claim. See 28 U.S.C. 18 §2254(b) (successive petitions). If Petitioner is aware of any claim not included in his 19 petition, he should notify the Court of that as soon as possible, perhaps by means of a 20 motion to amend his petition to add the claim. 21 Petitioner has also submitted a motion for appointment of counsel. (ECF No. 5.) 22 There is no constitutional right to appointed counsel for a federal habeas corpus 23 proceeding. See Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); Bonin v. Vasquez, 24 999 F.2d 425, 428 (9th Cir. 1993). The decision to appoint counsel is generally 25 discretionary. See Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986), cert. denied, 26 481 U.S. 1023 (1987); Bashor v. Risley, 730 F.2d 1228, 1234 (9th Cir. 1984), cert. denied, 27 469 U.S. 838 (1984). However, counsel must be appointed if the complexities of the case 1 petitioner is a person of such limited education as to be incapable of fairly presenting his 2 claims. See Chaney, 801 F.2d at 1196; see also Hawkins v. Bennett, 423 F.2d 948 (8th 3 Cir. 1970). Here, Rodriguez is serving a lengthy sentence, and it is not entirely clear 4 whether the legal issues he seeks to raise are complex. Thus, in order to ensure due 5 process, the Court grants Rodriguez’s motion for counsel. 6 It is therefore ordered that Petitioner’s application to proceed in forma pauperis 7 (ECF No. 4) is denied as moot. 8 It is further ordered that the Clerk of Court detach, file, and electronically serve the 9 petition (ECF No. 1-1) on Respondents. 10 It is further ordered that the Clerk of Court add Aaron D. Ford, Nevada Attorney 11 General, as counsel for Respondents, and provide Respondents an electronic copy of all 12 items previously filed in this case by regenerating the Notice of Electronic Filing to the 13 office of the AG only. 14 It is further ordered that Petitioner’s motion for appointment of counsel (ECF No. 15 5) is granted. 16 It is further ordered that the Federal Public Defender for the District of Nevada 17 (“FPD”) is appointed to represent Petitioner. 18 It is further ordered that the Clerk of Court electronically serve the FPD a copy of 19 this order, together with a copy of the petition for writ of habeas corpus (ECF No. 1-1). 20 The FPD has 30 days from the date of entry of this order to file a notice of appearance or 21 to indicate to the Court its inability to represent Petitioner in these proceedings. 22 It is further ordered that after counsel has appeared for Petitioner in this case, the 23 Court will issue a scheduling order, which will, among other things, set a deadline for the 24 filing of an amended petition. 25 DATED THIS 27th Day of January 2021. 26

27 MIRANDA M. DU, CHIEF JUDGE