Bautista v. Garrett

3 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA * * * EBERTO BAUTISTA-EREDEA, Case No. 3:20-cv-00403-LRH-CLB Petitioner, ORDER v. GARRETT, et al., Respondents.

13 28 U.S.C. § 2254 habeas corpus petitioner Eberto Bautista-Eredea has submitted a second motion for appointment of counsel (ECF No. 20) as well as a motion for leave to file an amended petition (ECF No. 21). Respondents have responded to both, and Bautista-Eredea replied (ECF Nos. 23, 24). As discussed below, the court grants both motions.

18 There is no constitutional right to appointed counsel for a federal habeas corpus proceeding. Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); Bonin v. Vasquez, 999 20 F.2d 425, 428 (9th Cir. 1993). The decision to appoint counsel is generally discretionary. Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986), cert. denied, 481 22 U.S. 1023 (1987); Bashor v. Risley, 730 F.2d 1228, 1234 (9th Cir.), cert. denied, 469 23 U.S. 838 (1984). However, counsel must be appointed if the complexities of the case are such that denial of counsel would amount to a denial of due process, and where the petitioner is a person of such limited education as to be incapable of fairly presenting his claims. See Chaney, 801 F.2d at 1196; see also Hawkins v. Bennett, 423 F.2d 948 (8th Cir. 1970).

1 Bautista-Eredea’s first motion for counsel was a form motion that merely asserted that the issues were too complex for his comprehension (see ECF No. 5).

3 However, because his petition was clear and the remaining legal issues did not appear to be particularly complex, the court concluded that counsel was not warranted (see ECF No. 3).

6 Bautista-Eredea now explains that he speaks Spanish and had an interpreter at his trial (ECF No. 20). He states, through the help of second inmate, that while he intended to raise all issues that he raised in his direct appeal and state postconviction petition, the inmate who assisted him in his original federal petition only raised three grounds for relief. Id. Bautista-Eredea attached a proposed amended petition to his motion for leave to file an amended petition, which appears to include the claims he asserted in his state proceedings (ECF Nos. 21, 21-1).

13 Responding to both motions, respondents state that they reviewed Bautista- Eredea’s state proceedings and confirm that he had an interpreter for his criminal proceedings (ECF No. 23). While they note that they cannot otherwise make any assertions about Bautista-Eredea’s language fluency, they defer to the court with respect to appointment of counsel. They further state that they have no specific objection to Bautista-Eredea filing an amended petition. The court, therefore, grants the motion for appointment of counsel and the motion for leave to file an amended petition.

20 IT IS THEREFORE ORDERED that petitioner’s motion for appointment of counsel (ECF No. 20) is GRANTED.

22 IT IS FURTHER ORDERED that the Federal Public Defender for the District of Nevada (FPD) is appointed to represent petitioner.

24 IT IS FURTHER ORDERED that petitioner’s motion for leave to file an amended petition (ECF No. 21) is GRANTED. The Clerk is directed to detach and FILE the amended petition (ECF No. 21-1).

27 IT IS FURTHER ORDERED that the Clerk ELECTRONICALLY SERVE the FPD corpus (ECF No. 4) and the amended petition (ECF No. 21-1). The FPD has 30 days || from the date of entry of this order to file a notice of appearance or to indicate to the |! court its inability to represent petitioner in these proceedings.

4 IT IS FURTHER ORDERED that after counsel has appeared for petitioner in this case, the court will issue a scheduling order, which will, among other things, set a || deadline for the filing of any further amended petition.

IT IS FURTHER ORDERED that respondents’ motion to dismiss (ECF No. 8) is || DISMISSED without prejudice.

9 IT IS FURTHER ORDERED that respondents’ motion for extension of time to 10 respond to the motion for appointment of counsel (ECF No. 22) is GRANTED nunc pro |) tune.

12 DATED this 28th day of April, 2021. A / | - / 44 LARRYARHICK UNITED STATES DISTRICT JUDGE