United States District Court, D. Nevada
D. MCKIBBEN United States District Judge
habeas matter under 28 U.S.C. § 2254 comes before the
Court on petitioner's application (ECF No. 1) to proceed
in forma pauperis, on his motion (ECF No. 1-2) for
appointment of counsel submitted with the petition, and for
initial review under Rule 4 of the Rules Governing Section
2254 Cases. The Court finds that petitioner is unable to pay
the filing fee. The pauper application will be granted, and
the Court proceeds to initial review.
Robert Berry challenges his Nevada state conviction, pursuant
to a plea, of attempt to commit robbery and his sentencing as
a habitual criminal. He is serving a life sentence with parole
eligibility after a minimum of ten years has been served. The
state corrections department website inmate search
information reflects that the sentence started on June 23,
2013, and that Berry currently is 49 years old.
original judgment of conviction was entered on September 17,
2013. Ultimately, on a timely state post-conviction petition,
petitioner was granted an out-of-time appeal pursuant to Rule
4(c) of the Nevada Rules of Appellate Procedure. The Supreme
Court of Nevada affirmed the conviction on October 19, 2015,
in No. 66225 in that court. The ninety-day time period for
filing a certiorari petition in the United States
Supreme Court expired on Tuesday, January 19, 2016, after the
Martin Luther King Jr. Day legal holiday.
N.R.S. 34.726(1) and Rule 4(c)(5) of the Nevada Rules of
Appellate Procedure, a state post-conviction petition filed
within a year of the November 13, 2015, remittitur would be
timely. The state court record exhibits filed by the
respondents in the prior action in this Court in No.
3:16-cv-00470 did not reflect the filing of such a state
court petition as of the December 1, 2016, filing of the
of the state appellate court's online docket records does
not reflect that petitioner has filed any other proceedings
in the appellate courts other than the prior direct appeal in
constructively filed a prior federal petition in this Court
in No. 3:16-cv-00470 on or about August 4, 2016. The Court
dismissed the petition without prejudice as completely
unexhausted on September 26, 2017, on the respondents'
unopposed motion to dismiss. Petitioner did not appeal the
dismissal of that action.
present federal petition was mailed to the Clerk for filing
on or about October 26, 2017. That date also was the last day
on which petitioner could file a timely notice of appeal
and/or seek other appropriate relief in No. 3:16-cv-00470
before the judgment became final and nonappealable. The
current petition likely is untimely on its face standing
present petition presents a claim potentially corresponding
to the claim exhausted in the out-of-time direct appeal.
Petitioner challenges whether Nevada could prosecute the
crime in question because it allegedly was subject to
exclusive federal jurisdiction because it occurred at a store
owned by the Fallon Paiute-Shoshone Tribe and operated in
Indian country. (ECF No. 1-1, at 3-4.) The Supreme Court of
Nevada rejected a similar claim on direct appeal. (See No.
3:16-cv-00470, ECF No. 9-29, Exhibit 64.)
into account the foregoing procedural history, the Court
finds that appointment of counsel would be in the interests
of justice given the lengthy sentence and the potential
complexity of the procedural and substantive legal issues
presented. The motion for appointment of counsel accordingly
will be granted.
THEREFORE IS ORDERED that petitioner's application (ECF
No. 1) to proceed in forma pauperis is GRANTED and
that petitioner will not be required to pay the filing fee.
FURTHER IS ORDERED that the Clerk of Court shall file the
petition and accompanying motion for appointment of counsel,
that the motion for appointment of counsel is GRANTED, and
that the Clerk shall reflect the grant of the motion when
docketing the motion in a manner consistent with the
Clerk's current practice for such matters. The counsel
appointed will represent the petitioner in all federal
proceedings related to this matter, including any appeals or
certiorari proceedings, unless allowed to withdraw.
FURTHER IS ORDERED that the Federal Public Defender shall be
provisionally appointed as counsel and shall have
thirty (30) days to undertake direct
representation of petitioner or to indicate to the Court the
office's inability to represent petitioner in these
proceedings. If the Federal Public Defender is unable to
represent petitioner, the Court then shall appoint alternate
counsel. A deadline for the filing of an amended petition
and/or seeking other relief will be set after counsel has
entered an appearance. The Court anticipates setting the
deadline for approximately one hundred twenty (120) days from
entry of the formal order of appointment. Any deadline
established and/or any extension thereof will not signify any
implied finding of a basis for tolling during the time period
established. Petitioner at all times remains responsible for
calculating the running of the federal limitation period and
timely presenting claims. That is, by setting a deadline to
amend the petition and/or by granting any extension thereof,
the Court makes no finding or representation that the
petition, any amendments thereto, and/or any claims contained
therein are not subject to dismissal as untimely. See
Sossa v. Diaz, 729 F.3d 1225, 1235 (9th Cir. 2013).
FURTHER IS ORDERED, so that the respondents may be
electronically served with any papers filed through counsel,
that the ...