Austin v. Gittere ( 2019 )


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  • 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 * * * 9 ABRAHAM AUSTIN, Case No. 3:19-cv-00346-MMD-CBC 10 Petitioner, ORDER v. 11 WARDEN BILL GITTERE, et al., 12 Respondents. 13 14 Petitioner Abraham Austin has filed a 28 U.S.C. § 2254 habeas corpus petition 15 and has now paid the filing fee (see ECF Nos. 1-1, 4). The Court has reviewed the Petition 16 pursuant to Habeas Rule 4, and it will be served on Respondents. 17 A petition for federal habeas corpus should include all claims for relief of which 18 Petitioner is aware. If Petitioner fails to include such a claim in his Petition, he may be 19 forever barred from seeking federal habeas relief upon that claim. See 28 U.S.C. 20 §2254(b) (successive petitions). If Petitioner is aware of any claim not included in his 21 Petition, he should notify the Court of that as soon as possible, perhaps by means of a 22 motion to amend his petition to add the claim. 23 Austin also has submitted a motion for appointment of counsel (ECF No. 1-2). 24 There is no constitutional right to appointed counsel for a federal habeas corpus 25 proceeding. Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); Bonin v. Vasquez, 999 26 F.2d 425, 428 (9th Cir.1993). The decision to appoint counsel is generally discretionary. 27 Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir.1986); Bashor v. Risley, 730 F.2d 1228, 28 1234 (9th Cir. 1984). However, counsel must be appointed if the complexities of the case 2 petitioner is a person of such limited education as to be incapable of fairly presenting his 3 claims. See Chaney, 801 F.2d at 1196; see also Hawkins v. Bennett, 423 F.2d 948 (8th 4 Cir.1970). Here, Austin’s petition clearly presents the issues that he wishes to raise, and 5 the legal issues do not appear to be particularly complex. Therefore, counsel is not 6 justified. Austin’s motion is denied. 7 Additionally the Court notes that no courtesy copies—except as specified at the 8 conclusion of this order—are required in this case at this time. 9 It is therefore ordered that the Clerk detach, file and electronically serve the 10 Petition (ECF No. 1-1) on Respondents. 11 It is further ordered that the Clerk add Aaron D. Ford, Nevada Attorney General, 12 as counsel for Respondents. 13 It is further ordered that the Clerk detach and file Petitioner’s motion for 14 appointment of counsel (ECF No. 1-2). 15 It is further ordered that Petitioner’s motion for appointment of counsel (ECF No. 16 1-2) is denied. 17 It is further ordered that Respondents file a response to the Petition, including 18 potentially by motion to dismiss, within 90 days of service of the Petition, with any requests 19 for relief by Petitioner by motion otherwise being subject to the normal briefing schedule 20 under the local rules. Any response filed must comply with the remaining provisions 21 below, which are entered pursuant to Habeas Rule 5. 22 It is further ordered that any procedural defenses raised by Respondents in this 23 case must be raised together in a single consolidated motion to dismiss. In other words, 24 the Court does not wish to address any procedural defenses raised herein either in 25 seriatum fashion in multiple successive motions to dismiss or embedded in the answer. 26 Procedural defenses omitted from such motion to dismiss will be subject to potential 27 waiver. Respondents must not file a response in this case that consolidates their 28 procedural defenses, if any, with their response on the merits, except pursuant to 28 1|| U.S.C. § 2254(b)(2) as to any unexhausted claims clearly lacking merit. If Respondents 2|| do seek dismissal of unexhausted claims under § 2254(b)(2): (a) they must do so within the single motion to dismiss not in the answer; and (b) they must specifically direct their 4|| argument to the standard for dismissal under § 2254(b)(2) set forth in Cassett v. Stewart, 5|| 406 F.3d 614, 623-24 (9th Cir. 2005). In short, no procedural defenses, including 6|| exhaustion, will be included with the merits in an answer. All procedural defenses, 7|| including exhaustion, instead must be raised by motion to dismiss. 8 It is further ordered that, in any answer filed on the merits, Respondents must 9|| specifically cite to and address the applicable state court written decision and state court record materials, if any, regarding each claim within the response as to that claim. 11 It is further ordered that Petitioner will have 45 days from service of the answer, 12|| motion to dismiss, or other response to file a reply or opposition, with any other requests for relief by Respondents by motion otherwise being subject to the normal briefing 14|| schedule under the local rules. 15 It is further ordered that any additional state court record exhibits filed herein by 16|| either Petitioner or Respondents must be filed with a separate index of exhibits identifying || the exhibits by number. The CM/ECF attachments that are filed further must be identified by the number or numbers of the exhibits in the attachment. 19 It is further ordered that, at this time, the parties must send courtesy copies of any 20|| responsive pleading or motion and all indices of exhibits only to the Reno Division of this Court. Courtesy copies should be mailed to the Clerk of Court, 400 S. Virginia St., Reno, NV 89501, and directed to the attention of “Staff Attorney” on the outside of the mailing 23|| address label. No further courtesy copies are required unless and until requested by the court. 25 DATED THIS 6" day of August 2019. 26 1m 27 MIRANDA M. DU 58 UNITED STATES DISTRICT JUDGE

Document Info

Docket Number: 3:19-cv-00346

Filed Date: 8/6/2019

Precedential Status: Precedential

Modified Date: 6/25/2024