Hemingway v. Beau ( 2024 )

1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 * * * 6 PEYTON HEMINGWAY, Case No. 2:24-cv-00156-MMD-DJA 7 Petitioner, ORDER 8 v. 9 JEREMY BEAU, et al., 10 Respondents. 11 Peyton Hemingway has submitted a pro se petition for writ of habeas corpus under 12 28 U.S.C. § 2254. (ECF No. 1-1.) The Court grants Petitioner’s application to proceed in 13 forma pauperis (ECF No. 1). The Court has reviewed the petition under Rule 4 of the 14 Rules Governing Section 2254 Cases and directs that it be served on Respondents. 15 A petition for federal habeas corpus should include all claims for relief of which a 16 petitioner is aware. If a 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, for example by means of 20 a motion to amend his petition to add the claim. 21 Hemingway has also submitted a motion for appointment of counsel. (ECF No. 1- 22 2.) There is no constitutional right to appointed counsel in a federal habeas corpus 23 proceeding. See Luna v. Kernan, 784 F.3d 640, 642 (9th Cir. 2015) (citing Lawrence v. 24 Florida, 549 U.S. 327, 336-37 (2007)). An indigent petitioner may request appointed 25 counsel to pursue habeas relief. See 18 U.S.C. § 3006A(a)(2)(B). The decision to appoint 26 counsel is generally discretionary. See id. at § 3006A(a)(2) (authorizing appointment of 27 counsel “when the interests of justice so require”). However, counsel is appropriate if the 28 complexities of the case are such that denial of counsel would amount to a denial of due 1 process, and where a petitioner is so uneducated that he is incapable of fairly presenting 2 his claims. See LaMere v. Risley, 827 F.2d 622, 626 (9th Cir. 1987); Brown v. United 3 States, 623 F.2d 54, 61 (9th Cir. 1980). Here, a jury convicted Hemingway of several 4 counts including second-degree murder, kidnapping and robbery, and he is serving an 5 aggregate sentence of 28 years to life in prison. At least some of the legal issues he seeks 6 to raise may be complex. In order to ensure due process, the Court grants the motion for 7 appointment of counsel. 8 It is therefore ordered that Petitioner’s application to proceed in forma pauperis 9 (ECF No. 1) is granted. 10 The Clerk of Court is further directed to detach, file, and electronically serve the 11 petition (ECF No. 1-1) on Respondents. 12 The Clerk of Court is further directed to add Aaron D. Ford, Nevada Attorney 13 General, as counsel for Respondents and provide Respondents an electronic copy of all 14 items previously filed in this case by regenerating the Notice of Electronic Filing to the 15 Office of the Attorney General only. 16 The Clerk of Court is further directed to detach and file Petitioner’s motion for 17 appointment of counsel (ECF No. 1-2). 18 It is further ordered that the motion for appointment of counsel (ECF No. 1-2) is 19 granted. 20 It is further ordered that the Federal Public Defender for the District of Nevada 21 (“FPD”) is appointed to represent Petitioner. 22 The Clerk of Court is further directed to electronically serve FPD with a copy of this 23 order, together with a copy of the petition for writ of habeas corpus (ECF No. 1-1). FPD 24 has 30 days from the date of entry of this order to file a notice of appearance or to indicate 25 to the Court its inability to represent Petitioner in these proceedings. 26 /// 27 28 1 It is further ordered that after counsel has appeared for Petitioner in this case, the 2 || Court will issue a scheduling order, which will, among other things, set a deadline for the 3 || filing of an amended petition. 4 DATED THIS 23" Day of February 2024. MIRANDA M. DU 7 CHIEF UNITED STATES DISTRICT JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28