United States District Court, D. Nevada
JOSE E. SILVA, Petitioner,
BRIAN WILLIAMS, et al., Respondents.
M. NAVARRO, CHIEF UNITED STATES DISTRICT JUDGE
habeas matter under 28 U.S.C. § 2254 comes before the
Court on petitioner's motion (ECF No. 2) for appointment
of counsel and for initial review under Rule 4 of the Rules
Governing Section 2254 Cases. The filing fee has been paid.
the pauper application was denied with regard to payment of
the filing fee, the financial exhibits submitted with the
application otherwise establish petitioner's financial
eligibility for appointment of counsel under 18 U.S.C. §
review, the Court finds that appointment of counsel is in the
interests of justice.
superficial review, it might appear initially that petitioner
had inserted within the body of the federal petition a
handwritten proper person appellate brief from the state
post-conviction appeal in order to state his federal claims.
(See ECF No. 1-1, at 3-20.) As such, the incorporated
possible state court filing would tend to suggest that
petitioner had a more than adequate ability to articulate his
legal position in proper person with the resources available
to him. However, petitioner was represented by counsel on the
state post-conviction appeal. Further review reflects that
the material inserted in the federal petition instead is a
near-verbatim handwritten transcription of the typewritten
appellant's opening brief filed instead by state
post-conviction appeal counsel in the state appellate courts
on March 3, 2017, with certain minor changes to reflect the
different procedural context. Rather than reflecting
petitioner's capability to adequately present his
position, the incorporation of the material physically
transcribed without any apparent discernment as to what
appropriately should have been included in a federal habeas
petition instead raises a question as to petitioner's
capability in that regard.
Court accordingly finds that appointment of counsel is in the
interests of justice given, inter alia, the question
presented on the current record as to petitioner's
ability to adequately present his position in proper person,
the lengthy aggregate sentencing structure including two
consecutive sentences of 10 years to life each, and the
complexity of the potential procedural and substantive issues
THEREFORE IS ORDERED that, the filing fee having been paid,
the Clerk of Court shall file the petition.
FURTHER IS ORDERED that petitioner's motion (ECF No. 2)
for appointment of counsel is GRANTED. The counsel appointed
will represent 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 one hundred twenty (120) days following 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 Clerk shall add state attorney general Adam P.
Laxalt as counsel for respondents and shall make informal
electronic service of this order upon respondents by
directing a notice of electronic filing to him.
Respondents' counsel shall enter a notice of appearance
within twenty-one (21) days of entry of this
order, but no further response shall be required from
respondents until further order of the Court.
Clerk accordingly shall send a copy of this order to the
pro se petitioner, the Nevada Attorney General, the
Federal Public Defender, and the CJA Coordinator for this
Clerk further shall provide copies of all prior filings
herein to both the Attorney General and the Federal Public
Defender in a manner consistent with the Clerk's current
practice, such as regeneration of notices of electronic