Schnueringer v. Russell ( 2019 )

1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 * * * 6 ROBERT SCHNUERINGER, Case No. 3:19-cv-00353-MMD-WGC 7 Petitioner, v. ORDER 8 9 PERRY RUSSELL, et al., 10 Respondents. 11 12 This is a habeas corpus proceeding under 28 U.S.C. § 2254. As directed by this 13 Court’s Order of June 25, 2019 (ECF No. 3), Robert Schnueringer, a Nevada prisoner, 14 has paid the filing fee for this action. Thus, the Clerk of Court will be directed to file 15 Schnueringer’s habeas petition (ECF No. 1-1), and motion for appointment of counsel 16 (ECF No. 1-2). 17 The Court has reviewed the habeas petition pursuant to Rule 4 of the Rules 18 Governing Section 2254 Cases in the United States District Courts. Following that review, 19 the Court will order the petition be served upon the Respondents and will require a 20 response.1 21 But Schnueringer’s motion for appointment of counsel will be denied. “Indigent 22 state prisoners applying for habeas corpus relief are not entitled to appointed counsel 23 24 1Schnueringer’s petition indicates that it is a “protective petition” and that he requests a stay under Rhines v. Weber, 544 U.S. 269 (2005). (ECF No. 1-1 at 77.) His 25 request is premature until he identifies or presents claims for which he has failed to 26 exhaust state court remedies and makes the necessary showing. See Rhines, 544 U.S. at 275 (stating that the purpose of stay and abeyance is to allow the petitioner to return 27 to state court to exhaust previously unexhausted claims). 1 unless the circumstances of a particular case indicate that appointed counsel is 2 necessary to prevent due process violations.” Chaney v. Lewis, 801 F.2d 1191, 1196 (9th 3 Cir. 1986) (citing Kreiling v. Field, 431 F.2d 638, 640 (9th Cir. 1970) (per curiam)). The 4 Court may, however, appoint counsel at any stage of the proceedings “if the interests of 5 justice so require.” See 18 U.S.C. § 3006A; see also Rule 8(c), Rules Governing § 2254 6 Cases; Chaney, 801 F.2d at 1196. It appears to the Court that appointment of counsel is 7 not warranted in this case. 8 It is therefore ordered that the Clerk of Court is directed to separately file the 9 petition for writ of habeas corpus and the motion for appointment of counsel, each of 10 which is currently attached to the in forma pauperis application at ECF No. 1. 11 It is further ordered that the Clerk of Court is directed to add Aaron D. Ford, 12 Attorney General of the State of Nevada, as counsel for Respondents. 13 It is further ordered that the Clerk of Court is directed to electronically serve upon 14 Respondents a copy of the petition for writ of habeas corpus, and a copy of this order. 15 It is further ordered that Respondents will have 60 days from the date on which the 16 petition is served upon them to appear in this action, and to answer or otherwise respond 17 to the petition. If Respondents file an answer, Petitioner will have 60 days to file a reply 18 to the answer. If Respondents file a motion to dismiss, Petitioner will have 60 days to file 19 a response to the motion to dismiss, and then Respondents will have 30 days to file a 20 reply to Petitioner’s response. 21 It is further ordered that Petitioner’s motion for appointment of counsel is denied. 22 DATED THIS 5th day of August 2019. 23 24 MIRANDA M. DU UNITED STATES DISTRICT JUDGE 25 26 27