Hayes v. Hutchings

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 JAMES H. HAYES, Case No.: 2:21-cv-02267-APG-DJA 4 Petitioner Order 5 v. 6 WILLIAM HUTCHING, et al., 7 Respondents. [8] 9 Petitioner James H. Hayes moves for appointment of counsel. ECF No. 12. The 10 respondents do not oppose. ECF No. 13. In order to ensure due process, I grant the motion to 11 appoint counsel. 12 There is no constitutional right to appointed counsel for a federal habeas corpus 13 proceeding. Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); Bonin v. Vasquez, 999 F.2d 425 , 14 428 (9th Cir.1993). The decision to appoint counsel is generally discretionary. Chaney v. Lewis, [15] 801 F.2d 1191, 1196 (9th Cir.1986), cert. denied, 481 U.S. 1023 (1987); Bashor v. Risley, 730 16 F.2d 1228 , 1234 (9th Cir.), cert. denied, 469 U.S. 838 (1984). However, counsel must be 17 appointed if the complexities of the case are such that denial of counsel would amount to a denial 18 of due process, and where the petitioner is a person of such limited education as to be incapable 19 of fairly presenting his claims. See Chaney, 801 F.2d at 1196 ; see also Hawkins v. Bennett, 423 20 F.2d 948 (8th Cir.1970). Here, the legal issues that Hayes seeks to raise are potentially complex. 21 Notably, the respondents filed a non-opposition to the appointment of counsel. I conclude that 22 counsel is warranted so I grant it. [23] 1 I THEREFORE ORDER that the petitioner’s motion for appointment of counsel (ECF 2|| No. 12) is GRANTED. 3 I FURTHER ORDER that the Federal Public Defender for the District of Nevada (FPD) Allis appointed to represent the petitioner. 5 I FURTHER ORDER the Clerk of Court to ELECTRONICALLY SERVE the FPD a 6|| copy of this order, together with a copy of the petition for writ of habeas corpus (ECF Nos. 7, 8, The FPD has 30 days from the entry of this order to file a notice of appearance or to indicate 8|| to the court its inability to represent the petitioner in these proceedings. 9 I FURTHER ORDER that after counsel has appeared for the petitioner in this case, the court will issue a scheduling order, which will, among other things, set a deadline for the filing an amended petition. 12 Dated: April 1, 2022 [13] U.S. District Judge Andrew P. Gordon