Chao v. Neven

GLORIA M. NAVARRO, CHIEF JUDGE UNITED STATES DISTRICT COURT

ORDER

On April 21, 2015, this court granted petitioner Greg Takung Chao's motion to stay and abey his pro se habeas corpus petition under 28 U.S.C. § 2254 until his state habeas petition was resolved (ECF No. 7). The stay was conditioned upon Chao returning to federal court with a motion to reopen the case within forty-five days of the conclusion of his state-court proceedings.

Chao's state-court proceedings have concluded, and he has now returned to this court seeking to reopen this case (ECF No. 8). Good cause appearing, this action is reopened.

Petitioner has also filed a motion for appointment of counsel (ECF No. 9). 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 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 U.S. 1023 (1987); Bashor v. Risley, 730 F.2d 1228, 1234 (9th Cir.), cert. denied, 469 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). Here, Chao indicates that he is serving consecutive sentences of life without the possibility of parole, and the legal issues—stemming from two trials—that he wishes to raise may be complex. Therefore, Chao's motion for counsel shall be granted.

IT IS THEREFORE ORDERED that petitioner's motion to reopen this action (ECF No. 8) is GRANTED.

IT IS FURTHER ORDERED that, as the stay is lifted by this order, the Clerk shall REOPEN THE FILE in this action.

IT IS FURTHER ORDERED that the Clerk shall add Adam Paul Laxalt, Nevada Attorney General, as counsel for respondents.

IT IS FURTHER ORDERED that the Clerk shall electronically serve the petition, along with a copy of this order, on respondents.

IT IS FURTHER ORDERED that petitioner's motion for appointment of counsel (ECF No. 9) is GRANTED.

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

IT IS FURTHER ORDERED that the Clerk shall ELECTRONICALLY SERVE the FPD a copy of this order, together with a copy of the petition for writ of habeas corpus (ECF No. 11). The FPD shall have thirty (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.

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 an amended petition.

IT IS FURTHER ORDERED that petitioner's motion to extend time to file an amended petition (ECF No. 10) is DENIED as moot.

DATED: 1 November 2017.

/s/_________

GLORIA M. NAVARRO, CHIEF JUDGE

UNITED STATES DISTRICT COURT