Zogheib v. Williams

Opinion

6 UNITED STATES DISTRICT COURT

7 DISTRICT OF NEVADA

8 * * *

9 JIHAD ANTHONY ZOGHEIB, Case No. 2:22-cv-01213-GMN-VCF

10 Petitioner, Order Serving Petition v. 11 BRIAN WILLIAMS, et al., 12 Respondents. 13 Jihad Anthony Zogheib submitted a pro se 28 U.S.C. § 2254 habeas petition, an 14 amended petition and has now paid the filing fee. (ECF Nos. 1-1, 4, 5.) The court has 15 16 conducted a preliminary review of the petition and directs that it be served on 17 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 §2244(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 24 motion to amend his petition to add the claim. 25 Zogheib has also submitted a motion for appointment of counsel. (ECF No. 1-2.) 26 There is no constitutional right to appointed counsel in a federal habeas corpus 27 proceeding. Luna v. Kernan, 784 F.3d 640, 642 (9th Cir. 2015) (citing Lawrence v. 1 Florida, 549 U.S. 327, 336–37 (2007)). An indigent petitioner may request appointed 2 counsel to pursue habeas relief. 18 U.S.C. § 3006A(a)(2)(B). The decision to appoint 3 counsel is generally discretionary. Id. § 3006A(a)(2) (authorizing appointment of counsel 4 “when the interests of justice so require”). However, counsel is appropriate if the 5 complexities of the case are such that denial of counsel would amount to a denial of due 6 7 process, and where the petitioner is so uneducated that he is incapable of fairly 8 presenting his claims. LaMere v. Risley, 827 F.2d 622, 626 (9th Cir. 1987); Brown v. 9 United States, 623 F.2d 54, 61 (9th Cir. 1980). Here, Zogheib’s petition generally 10 presents his claims in a reasonably clear manner, and the legal issues do not appear to 11 be particularly complex. Therefore, the court denies the motion without prejudice at this 12 time. 13 IT IS THEREFORE ORDERED that the Clerk of Court detach, file, and 14 15 electronically SERVE the petition (ECF No. 1-1) on respondents. 16 IT IS FURTHER ORDERED that the Clerk add Aaron D. Ford, Nevada Attorney 17 General, as counsel for respondents and provide respondents an electronic copy of all 18 items previously filed in this case by regenerating the Notice of Electronic Filing to the 19 office of the AG only. 20 IT IS FURTHER ORDERED that the Clerk detach and file petitioner’s motion for 21 appointment of counsel (ECF No. 1-2). 22 23 IT IS FURTHER ORDERED that the motion for counsel is DENIED without 24 prejudice. 25 IT IS FURTHER ORDERED that respondents file a response to the petition, 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 1 briefing schedule under the local rules. Any response filed is to comply with the 2 remaining provisions below, which are entered pursuant to Habeas Rule 5. 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 7 in seriatum fashion in multiple successive motions to dismiss or embedded in the 8 answer. Procedural defenses omitted from such motion to dismiss will be subject to 9 potential waiver. Respondents should not file a response in this case that consolidates 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 15 direct their argument to the standard for dismissal under § 2254(b)(2) set forth in 16 Cassett v. Stewart, 406 F.3d 614, 623-24 (9th Cir. 2005). In short, no procedural 17 defenses, including exhaustion, should be included with the merits in an answer. All 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 23 IT IS FURTHER ORDERED that petitioner has 45 days from service of the 24 answer, motion to dismiss, or other response to file a reply or opposition, with any other 25 requests for relief by respondents by motion otherwise being subject to the normal 26 briefing schedule under the local rules. 27 1 IT IS FURTHER ORDERED that any additional state court record exhibits filed 2 herein by either petitioner or respondents be filed with a separate index of exhibits 3 identifying the exhibits by number. The parties will identify filed CM/ECF attachments by 4 the number or numbers of the exhibits in the attachment. 5 IT IS FURTHER ORDERED that, at this time, the parties send courtesy copies of 6 7 any responsive pleading or motion and all INDICES OF EXHIBITS ONLY to the 8 Reno Division of this court. Courtesy copies shall be mailed to the Clerk of Court, 400 9 S. Virginia St., Reno, NV, 89501, and directed to the attention of “Staff Attorney” on the 10 outside of the mailing address label. No further courtesy copies are required unless 11 and until requested by the court. 12 13 14 DATED: 13 October 2022. 15

16 GLORIA M. NAVARRO 17 UNITED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27