United States District Court, D. Nevada
D. McKIBBEN UNITED STATES DISTRICT JUDGE
action is a petition for a writ of habeas corpus filed
pursuant to 28 U.S.C. § 2254 by a Nevada state prisoner.
pro se petition, application to proceed in forma
pauperis, and motion for the appointment of counsel were
received by the Court on November 17, 2016. (ECF No. 1, 1-1,
order filed November 18, 2016, the Court denied
petitioner's application to proceed in forma
pauperis in this action. (ECF No. 3). Petitioner then
paid the filing fee for this action. (ECF No. 4).
December 20, 2016, the Court issued an order directing the
Clerk to file the petition and petitioner's motion for
the appointment of counsel. (ECF No. 5; ECF Nos. 6 & 7).
In that same order, the Court required petitioner to show
cause, within 30 days, why the petition should not be
dismissed with prejudice as time-barred. (ECF No. 5). On
January 18, 2017, petitioner filed a motion for an extension
of time to respond to the order to show cause. (ECF No. 8).
On the same day, petitioner filed his response to the order
to show cause. (ECF No. 9). In his response, petitioner
explained that the attorney litigating his post-conviction
petition and appeal abandoned him and never communicated to
him that the appeal was denied. (Id., at pp. 2-3).
Significantly, petitioner's attorney never returned the
case file to petitioner. (Id., at pp. 3-4).
Petitioner filed a motion in state court seeking the return
of his case file, which the state district court granted.
(Id., at p. 4). In state court, it was established
that petitioner's counsel resigned from the State Bar of
Nevada and no longer lives in Nevada. (Id.). These
facts are supported by petitioner's exhibits attached to
his response to the order to show cause. (Id.,
Attached Exhibits). Petitioner submits that the situation
surrounding his counsel's failure to inform him of the
Nevada Supreme Court's decision and failure to return his
case file excuses any untimely filing of the federal
petition. See Holland v. Florida, 130 S.Ct. 2549,
2560 (2010); see e.g., Spitsyn v. Moore, 345 F.3d
796, 799 (9thCir. 2007).
has filed a motion for the appointment of counsel. (ECF No.
7). Pursuant to 18 U.S.C. § 3006A(2)(B), the district
court has discretion to appoint counsel when it determines
that the “interests of justice” require
representation in a habeas corpus case. Petitioner has no
constitutional right to appointed counsel in 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 within
the Court's discretion. 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. See Chaney, 801 F.2d at 1196;
see also Hawkins v. Bennett, 423 F.2d 948 (8th Cir.
federal habeas petition submitted in this action includes
many claims, the contents of which suggest that it may be a
relatively complex action. In the underlying state criminal
case, petitioner was convicted of multiple crimes and was
sentenced to imprisonment for life with the possibility of
parole. In his motion seeking counsel, petitioner states that
he has problems with his hands and is unable to write. The
Court notes that the federal petition was drafted not by
petitioner, but by another inmate, suggesting that petitioner
lacks the ability necessary to litigate this federal habeas
action. Moreover, it appears that petitioner's counsel
never turned over the file to petitioner, and petitioner is
still without his criminal file. Given all of these
circumstances, the Court grants petitioner's motion for
the appointment of counsel.
the Federal Public Defender for the District of Nevada (FPD)
shall be appointed to represent petitioner. If the FPD is
unable to represent petitioner, due to a conflict of interest
or other reason, then alternate counsel for petitioner shall
be located, and the Court will enter a separate order
appointing such alternate counsel. In either case, counsel
will represent petitioner in all future federal proceedings
relating to this matter (including subsequent actions) and
appeals therefrom, unless allowed to withdraw.
THEREFORE ORDERED that petitioner's motion for an
extension to respond to the order to show cause (ECF No. 8)
is GRANTED nunc pro tunc.
FURTHER ORDERED that the order to show cause (ECF No. 5) is
FURTHER ORDERED that petitioner's motion for the
appointment of counsel (ECF No. 7) is GRANTED. The Federal
Public Defender is appointed to represent petitioner.
FURTHER ORDERED that the Clerk of Court SHALL ELECTRONICALLY
SERVE the Federal Public Defender for the District of Nevada
(FPD) a copy of this order, together with a copy of the
petition for writ of habeas corpus and its attachments (ECF
No. 6). The FPD shall have thirty (30) days from the date of
entry of this order to undertake direct representation of
petitioner or to indicate to the Court its inability to
represent petitioner in these proceedings.
FURTHER ORDERED that the Clerk of Court SHALL add Attorney
General Adam Paul Laxalt to the CM/ECF docket sheet and serve
respondents with a copy of this order. Respondents'
counsel SHALL ENTER a notice of appearance herein within ten
(10) days of entry of this order.
FURTHER ORDERED that the Clerk of Court SHALL SEND a copy of