The opinion of the court was delivered by: Miranda M. DU United States District Judge
This habeas matter comes before the Court: (a) on petitioner's application to proceed in forma pauperis (dkt. no. 1); (b) for initial review of the petition under Rule 4 of the Rules Governing Section 2254 Cases; and (c) on multiple motions either submitted with the petition (dkt. nos. 1-3 and 1-4) or filed thereafter (dkt. nos. 3 through 6), which include a motion for appointment of counsel and which otherwise are described with more specificity infra. On the pauper application, the Court finds that petitioner is unable to pay the filing fee; and the application therefore will be granted. The Court thereupon turns first to the motion for appointment of counsel.
I. MOTION FOR APPOINTMENT OF COUNSEL
Petitioner Lance Reberger challenges his 1993 Nevada state conviction, pursuant to a jury verdict, of burglary, robbery with the use of a deadly weapon, and first-degree murder with the use of a deadly weapon.
Although the judgment of conviction was filed in 1993, it appears likely that the federal one-year limitation period did not begin running in his case until January 7, 2013. The one-year limitation period under 28 U.S.C. § 2244(d)(1) did not begin running in any habeas petitioner's case until after the effective date of the Antiterrorism and Effective Death Penalty Act (AEDPA), such that the limitation period would begin to run only after April 24, 1996. See, e.g., Patterson v. Stewart, 251 F.3d 1243, 1245-46 (9th Cir. 2001). However, following the affirmance of the conviction on direct appeal, petitioner filed a timely state post-conviction petition on or about January 30, 1996. The timely state petition would statutorily toll the federal limitation period under 28 U.S.C. § 2244(d)(2). It thus does not appear that the federal limitation period began running in this case on the effective date of AEDPA on April 24, 1996. Proceedings on the state petition thereafter apparently were pending through the issuance of the remittitur on the state post-conviction appeal on January 7, 2013. It thus does not appear -- subject to full argument on a full record if timeliness is challenged herein -- that the federal limitation period began running in this case until after January 7, 2013, excluding for the present preliminary discussion any other possible tolling or delayed accrual.
It further appears that petitioner is subject to an extensive aggregate sentence under the sentencing structure in the judgment of conviction. It appears that petitioner was sentenced to: (a) six years on the burglary count; (b) ten years consecutive to ten years on the robbery with the use of a deadly weapon count and enhancement, to run consecutive to the burglary sentence, and (c) life with the possibility of parole consecutive to life with the possibility of parole on the first-degree murder with the use of a deadly weapon count and enhancement, to run consecutive to the sentences for robbery with the use of a deadly weapon. The Court does not have the benefit of the date of the offense at this juncture. However, it would appear likely that the minimum sentence on each sentence of life with the possibility of parole under N.R.S. 200.030 at the relevant time in this case, in which the prosecution was commenced in or around 1991, would have been ten years. Accordingly, it would appear on a preliminary review that Reberger possibly faces a combined twenty-six (26) years of term sentences subject to possible sentencing credit followed by a minimum twenty (20) years straight time not subject to such credit before he would be eligible for a non-institutional parole outside of prison walls. Allowing for the 862 days credit for time served, he thus possibly faces approximately three-and-a-half decades of incarceration before the possibility of a non-institutional parole. He possibly faces perhaps approximately fifteen (15) or more years from this point before such a possibility of a non-institutional parole, depending upon his incarceration and parole history, along with lifetime supervision on parole thereafter. Petitioner currently is 46 years of age according to the state corrections department's website, such that he possibly could be in his sixties before the possibility of release on parole outside prison walls.
Against the backdrop of the foregoing strictly preliminary and non-definitive review, the Court finds that appointment of counsel is in the interests of justice given: (a) the lengthy sentence structure; (b) the potential complexity of the procedural and substantive issues following state criminal and post-conviction litigation spanning over two decades; and (c) the fact that substantial unexpired time appears to remain in the federal limitation period for appointed federal habeas counsel to be able to investigate, present, and pursue counseled claims without the prospect of the limitation period potentially foreclosing such claims.
Petitioner should pay heed to the following, however.
Federal habeas counsel is not being appointed to act as a mere scrivener to restate and reassert each and every allegation and claim presented by petitioner pro se. The Court is not appointing counsel to pursue claims or arguments that, in counsel's independent professional judgment, have no arguable merit in a federal habeas corpus proceeding.
Petitioner thus should not assume that the Court will automatically
appoint replacement counsel in the event that petitioner and federal
habeas counsel do not agree on what claims or arguments should be
presented. Appointed counsel's task is to pursue claims that counsel,
in his or her own independent professional judgment, believes that a
court may find meritorious, not to present claims that petitioner, who
not an attorney, believes to be meritorious. Counsel is under
absolutely no obligation to "follow petitioner's instructions" as to
what claims or arguments to present and how to present them.
Accordingly, presenting the Court with an alleged conflict between
federal habeas counsel and petitioner based upon a disagreement over
how to pursue this case will not necessarily lead to an appointment of
replacement counsel. Subject to the circumstances presented at the
time, the Court potentially instead could find that the interests of
justice no longer warrant the continued appointment of any counsel,
based upon the premise that if petitioner has such an allegedly
irreconcilable conflict with one competent attorney, the situation is
not likely to be different with another competent attorney.*fn1
Counsel, again, is not being appointed to pursue claims that
petitioner believes to be meritorious but, instead, is being appointed
to pursue claims that, in counsel's independent professional judgment,
have arguable merit. Competent federal habeas counsel very well may
not pursue all of the claims, allegations and arguments in the current
Moreover, the Court will not entertain pro se filings from petitioner when he is represented by appointed counsel. Following the appointment of counsel, petitioner may pursue this matter and communicate with the Court only through filings by counsel. Repeated disregard of this admonition may result in the Court vacating the appointment of counsel, depending upon the circumstances presented at the time.
Subject to these observations, the motion for appointment of counsel will be granted.
Petitioner's motion to approve filing (dkt. no. 1-3) will be granted only in part. The Court will grant the motion insofar as the Court will permit the filing of the pro se petition and will direct the Clerk to send petitioner a copy of the pleading. However, the Court's action does not signify approval of the petition, which is deficient in numerous respects. The appointment of counsel with the subsequent filing of a counseled ...