United States District Court, D. Nevada
C. MAHAN UNITED STATES DISTRICT JUDGE
habeas action under 28 U.S.C. § 2254 comes before the
court on petitioner's application (ECF No. 1) to proceed
in forma pauperis, his motion (ECF No. 2) for
appointment of counsel, and for initial review.
pauper application is deficient in that petitioner did not
attach an inmate account statement for the prior six months
in addition to the financial certificate submitted. This
deficiency possibly may have been due, however, to petitioner
having been transferred to be held by Arizona authorities for
the Nevada corrections department. When petitioner filed a
prior petition in this court in June 2017 that was dismissed
without prejudice, he then was incarcerated at Ely State
Prison. See Garcia v. State of Nevada, No.
3:17-cv-00378-MMD-WGC. In all events, the incomplete
materials submitted reflect that petitioner has sufficient
funds to pay the $5.00 filing fee. The pauper application
therefore will be denied.
financial materials submitted otherwise establish
petitioner's financial eligibility for appointment of
counsel. The court finds that appointment of counsel is in
the interests of justice given, inter alia: (1)
petitioner's lengthy sentencing consisting of two
consecutive sentences of life with the possibility of parole
after a minimum of ten years on each sentence, on his
conviction, following a jury trial, of second-degree murder
with the use of a deadly weapon; (2) the very limited ability
demonstrated by petitioner in articulating his claims in this
and the prior action, with petitioner presenting more or less
bare documents covering copies of prior state court filings
and/or orders; (3) the prospect that petitioner's access
to Nevada-specific legal materials and inmate assistance
while incarcerated in Arizona may be more limited than the
resources that may have been available to him while held
within Nevada; and (4) the complexity of the potential
procedural and substantive issues presented, including those
potentially arising with respect to Martinez v.
Ryan, 566 U.S. 1 (2012), following upon counsel not
being appointed in the state post-conviction proceedings.
motion for appointment of counsel therefore will be granted.
The court is proceeding forward with appointment of counsel
prior to and while the filing fee is being paid so that
counsel may begin working on the case at the earliest
possible juncture. The $5.00 filing fee still must be paid
timely by petitioner or the action will be dismissed, the
appointment of counsel notwithstanding.
THEREFORE IS ORDERED that petitioner's application (ECF
No. 1) to proceed in forma pauperis is denied.
Petitioner shall have thirty (30) days from
entry of this order within which to have the filing fee of
five dollars ($5.00) sent to the clerk of court. Failure to
timely comply with this order will result in the dismissal of
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, given the
number of potential claims herein and the associated
investigation potentially involved, 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 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.
FURTHER IS ORDERED that the clerk shall file the petition.
clerk accordingly shall send a copy of this order to
petitioner in proper person, the federal public defender, the
state attorney general and the CJA coordinator for this
clerk additionally 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
the clerk shall provide petitioner two hard copies of this
order in proper person. Petitioner shall make the necessary
arrangements to have a copy of this order attached to the
check for the $5.00 ...