Williams v. Nevada Department of Corrections

D. Nevada

Williams v. Nevada Department of Corrections

DecidedFebruary 3, 2022

Docket3:21-cv-00187

StatusUnknown

This text of Williams v. Nevada Department of Corrections (Williams v. Nevada Department of Corrections) is published on Counsel Stack Legal Research, covering District Court, D. Nevada primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Williams v. Nevada Department of Corrections, (D. Nev. 2022).

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2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 TERRANCE EUGENE WILLIAMS, Case No. 3:21-cv-00187-HDM-CLB 5 Petitioner, 6 v. ORDER

7 NEVADA DEPARTMENT OF CORRECTIONS, et al., 8 Respondents. 9 10 This habeas matter is before the Court on Petitioner’s failure 11 to file an amended petition on the Court’s required 28 U.S.C. § 12 2254 petition form and failure to file a copy of his inmate trust 13 account statement for the six-month period prior to filing, or 14 alternatively pay the $5 filing fee. Also before the Court is 15 Petitioner’s Motion for Appointment of Counsel (ECF No. 5). 16 On May 24, 2021, the Court entered an order directing 17 Petitioner Terrance Eugene Williams, a pro se Nevada prisoner, to 18 file his petition on the Court’s required 28 U.S.C. § 2254 petition 19 form and to either pay the standard five dollar ($5.00) filing fee 20 or file a complete application for leave to proceed in forma 21 pauperis (“IFP”) within 30 days. (ECF No. 4). On June 9, 2021, 22 Petitioner filed a Motion for Appointment of Counsel (ECF No. 5) 23 and another IFP application (ECF No. 6). 24 On July 6, 2021, the Court instructed Petitioner to file an 25 amended petition on the Court’s form within 30 days and file a 26 copy of his inmate trust account statement for the six-month period 27 prior to filing, or alternatively pay the $5 filing fee within 30 28 days. On September 29, 2021, the Court again instructed Petitioner 1 to file an amended petition on the Court’s form within 30 days and 2 file a copy of his inmate trust account statement for the six- 3 month period prior to filing, or alternatively pay the $5 filing 4 fee within 30 days.1 In the September 29, 2021 order, the Court 5 attached a blank 28 U.S.C. § 2241 form in error.2 6 Local Rule LSR 3-1 requires Petitioner to file his petition 7 on the Court’s required § 2254 petition form. Petitioner must use 8 the required form to state his claims in order to provide the court 9 with necessary information to conduct preliminary review of the 10 petition. Because the Court attached another form in error, the 11 Court provided Petitioner an additional 45 days to file an amended 12 petition on the Court’s § 2254 petition form. 13 Although Petitioner has filed multiple letters to the Court 14 (ECF Nos. 13, 14, 15, 16), to date, Petitioner has not filed an 15 amended petition on the Court’s § 2254 petition form and has not 16 filed a copy of his inmate trust account statement for the six- 17 month period prior to filing, or alternatively paid the $5 filing 18 fee. The Court will give Petitioner one final chance to comply. 19 Accordingly, the Court will provide an additional 45 days for 20 Petitioner to file an amended petition on the Court’s § 2254 21 petition form as well as a copy of his inmate trust account 22 statement for the six-month period prior to filing. Alternatively, 23 Petitioner will pay the $5 filing fee within 45 days. 24 Petitioner must clearly title the amended petition as such by 25 26 1 To date, Petitioner has not filed a copy of his inmate trust account statement for the six-month period prior to filing, or 27 alternatively paid the $5 filing fee. 2 Petitioner must file his petition on the Court’s required 28 28 U.S.C. § 2254 petition form. 1 writing the word “AMENDED” immediately above “Petition for a Writ 2 of Habeas Corpus” on page 1 in the caption, and he must place the 3 case number, 3:21-cv-00187-HDM-CLB, in the designated space. Under 4 Local Rule 15-1, the amended petition must be complete in itself 5 without reference to previously filed papers. Thus, the claims and 6 allegations that are stated in the amended petition will be the 7 only matters remaining before the Court. Any claims or allegations 8 that are left out of the amended petition or that are not re- 9 alleged will not be considered. 10 Turning to Petitioner’s motion for appointment of counsel, 11 there is no constitutional right to appointed counsel in a federal 12 habeas corpus proceeding. Luna v. Kernan, 784 F.3d 640, 642 (9th 13 Cir. 2015) (citing Lawrence v. Florida, 549 U.S. 327, 336–37 14 (2007)). An indigent petitioner may request appointed counsel to 15 pursue that relief. 18 U.S.C. § 3006A(a)(2)(B). The decision to 16 appoint counsel is generally discretionary. Id. (authorizing 17 appointed counsel “when the interests of justice so require”). 18 Id. § 3006A(a)(2). However, counsel must be appointed if the 19 complexities of the case are such that denial of counsel would 20 amount to a denial of due process, and where the petitioner is so 21 uneducated that he is incapable of fairly presenting his claims. 22 LaMere v. Risley, 827 F.2d 622, 626 (9th Cir. 1987); Brown v. 23 United States, 623 F.2d 54, 61 (9th Cir. 1980). 24 The Court appreciates that it is difficult for pro se 25 petitioners to pursue their habeas claims and almost every pro se 26 party would benefit from representation by counsel. However, 27 Petitioner has made no showing as to why denial of counsel would 28 amount to a denial of due process. As such, the motion is denied 1 without prejudice. 2 IT IS THEREFORE ORDERED: 3 1. Petitioner’s Motion for Appointment of Counsel (ECF No. 5) 4 is DENIED. 5 2. The Clerk of Court is instructed to MAIL Petitioner a blank 6 form petition for a writ of habeas corpus pursuant to 28 7 U.S.C. § 2254 with instructions. 8 3. Petitioner must file an amended petition on the Court’s 9 form within 45 days. Petitioner must clearly title the 10 amended petition as such by writing the word “AMENDED” 11 immediately above “Petition for a Writ of Habeas Corpus” 12 on page 1 in the caption, and he must place the case number, 13 3:21-cv-00187-HDM-CLB, in the designated space. 14 4.Within 45 days of the date of this order, Petitioner must 15 file a copy of his inmate trust account statement for the 16 six-month period prior Lo filing. Alternatively, 17 Petitioner will pay the $5 filing fee within 45 days. 18 5. Petitioner’s failure to comply with this Order by (a) 19 filing an amended petition, and either (b) submitting a 20 statement of his inmate trust account for the six-month 21 period prior to filing to complete his IFP application, or 22 (c) paying the filing fee within 45 days will result in 23 the dismissal of this action without prejudice and without 24 further advance notice. 25 DATED: this 3rd day of February, 2022. 26 27 butane D ft filth. HOWARD D. MCKIBBEN 28 UNITED STATES DISTRICT JUDGE

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2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 TERRANCE EUGENE WILLIAMS, Case No. 3:21-cv-00187-HDM-CLB 5 Petitioner, 6 v. ORDER

7 NEVADA DEPARTMENT OF CORRECTIONS, et al., 8 Respondents. 9 10 This habeas matter is before the Court on Petitioner’s failure 11 to file an amended petition on the Court’s required 28 U.S.C. § 12 2254 petition form and failure to file a copy of his inmate trust 13 account statement for the six-month period prior to filing, or 14 alternatively pay the $5 filing fee. Also before the Court is 15 Petitioner’s Motion for Appointment of Counsel (ECF No. 5). 16 On May 24, 2021, the Court entered an order directing 17 Petitioner Terrance Eugene Williams, a pro se Nevada prisoner, to 18 file his petition on the Court’s required 28 U.S.C. § 2254 petition 19 form and to either pay the standard five dollar ($5.00) filing fee 20 or file a complete application for leave to proceed in forma 21 pauperis (“IFP”) within 30 days. (ECF No. 4). On June 9, 2021, 22 Petitioner filed a Motion for Appointment of Counsel (ECF No. 5) 23 and another IFP application (ECF No. 6). 24 On July 6, 2021, the Court instructed Petitioner to file an 25 amended petition on the Court’s form within 30 days and file a 26 copy of his inmate trust account statement for the six-month period 27 prior to filing, or alternatively pay the $5 filing fee within 30 28 days. On September 29, 2021, the Court again instructed Petitioner 1 to file an amended petition on the Court’s form within 30 days and 2 file a copy of his inmate trust account statement for the six- 3 month period prior to filing, or alternatively pay the $5 filing 4 fee within 30 days.1 In the September 29, 2021 order, the Court 5 attached a blank 28 U.S.C. § 2241 form in error.2 6 Local Rule LSR 3-1 requires Petitioner to file his petition 7 on the Court’s required § 2254 petition form. Petitioner must use 8 the required form to state his claims in order to provide the court 9 with necessary information to conduct preliminary review of the 10 petition. Because the Court attached another form in error, the 11 Court provided Petitioner an additional 45 days to file an amended 12 petition on the Court’s § 2254 petition form. 13 Although Petitioner has filed multiple letters to the Court 14 (ECF Nos. 13, 14, 15, 16), to date, Petitioner has not filed an 15 amended petition on the Court’s § 2254 petition form and has not 16 filed a copy of his inmate trust account statement for the six- 17 month period prior to filing, or alternatively paid the $5 filing 18 fee. The Court will give Petitioner one final chance to comply. 19 Accordingly, the Court will provide an additional 45 days for 20 Petitioner to file an amended petition on the Court’s § 2254 21 petition form as well as a copy of his inmate trust account 22 statement for the six-month period prior to filing. Alternatively, 23 Petitioner will pay the $5 filing fee within 45 days. 24 Petitioner must clearly title the amended petition as such by 25 26 1 To date, Petitioner has not filed a copy of his inmate trust account statement for the six-month period prior to filing, or 27 alternatively paid the $5 filing fee. 2 Petitioner must file his petition on the Court’s required 28 28 U.S.C. § 2254 petition form. 1 writing the word “AMENDED” immediately above “Petition for a Writ 2 of Habeas Corpus” on page 1 in the caption, and he must place the 3 case number, 3:21-cv-00187-HDM-CLB, in the designated space. Under 4 Local Rule 15-1, the amended petition must be complete in itself 5 without reference to previously filed papers. Thus, the claims and 6 allegations that are stated in the amended petition will be the 7 only matters remaining before the Court. Any claims or allegations 8 that are left out of the amended petition or that are not re- 9 alleged will not be considered. 10 Turning to Petitioner’s motion for appointment of counsel, 11 there is no constitutional right to appointed counsel in a federal 12 habeas corpus proceeding. Luna v. Kernan, 784 F.3d 640, 642 (9th 13 Cir. 2015) (citing Lawrence v. Florida, 549 U.S. 327, 336–37 14 (2007)). An indigent petitioner may request appointed counsel to 15 pursue that relief. 18 U.S.C. § 3006A(a)(2)(B). The decision to 16 appoint counsel is generally discretionary. Id. (authorizing 17 appointed counsel “when the interests of justice so require”). 18 Id. § 3006A(a)(2). However, counsel must be appointed if the 19 complexities of the case are such that denial of counsel would 20 amount to a denial of due process, and where the petitioner is so 21 uneducated that he is incapable of fairly presenting his claims. 22 LaMere v. Risley, 827 F.2d 622, 626 (9th Cir. 1987); Brown v. 23 United States, 623 F.2d 54, 61 (9th Cir. 1980). 24 The Court appreciates that it is difficult for pro se 25 petitioners to pursue their habeas claims and almost every pro se 26 party would benefit from representation by counsel. However, 27 Petitioner has made no showing as to why denial of counsel would 28 amount to a denial of due process. As such, the motion is denied 1 without prejudice. 2 IT IS THEREFORE ORDERED: 3 1. Petitioner’s Motion for Appointment of Counsel (ECF No. 5) 4 is DENIED. 5 2. The Clerk of Court is instructed to MAIL Petitioner a blank 6 form petition for a writ of habeas corpus pursuant to 28 7 U.S.C. § 2254 with instructions. 8 3. Petitioner must file an amended petition on the Court’s 9 form within 45 days. Petitioner must clearly title the 10 amended petition as such by writing the word “AMENDED” 11 immediately above “Petition for a Writ of Habeas Corpus” 12 on page 1 in the caption, and he must place the case number, 13 3:21-cv-00187-HDM-CLB, in the designated space. 14 4.Within 45 days of the date of this order, Petitioner must 15 file a copy of his inmate trust account statement for the 16 six-month period prior Lo filing. Alternatively, 17 Petitioner will pay the $5 filing fee within 45 days. 18 5. Petitioner’s failure to comply with this Order by (a) 19 filing an amended petition, and either (b) submitting a 20 statement of his inmate trust account for the six-month 21 period prior to filing to complete his IFP application, or 22 (c) paying the filing fee within 45 days will result in 23 the dismissal of this action without prejudice and without 24 further advance notice. 25 DATED: this 3rd day of February, 2022. 26 27 butane D ft filth. HOWARD D. MCKIBBEN 28 UNITED STATES DISTRICT JUDGE

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