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Peck v. Williams

United States District Court, D. Nevada

March 21, 2019

FRANK M. PECK, Petitioner,
v.
BRIAN WILLIAMS, et al., Respondents.

          ORDER APPOINTING COUNSEL, GRANTING LEAVE TO FILE PETITION, AND DENYING REMAINING MOTIONS WITHOUT PREJUDICE [ECF NOS. 19, 20, 23, 25, 26, 27, 34]

          JENNIFER A. DORSEY UNITED STATES DISTRICT JUDGE

         Frank M. Peck brings this Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254 to challenge his 2009 Nevada State Court conviction for sexual assault.[1] Peck has filed numerous motions that are currently pending. After the court directed Peck to file an amended petition, [2] he moved for leave to file an enlarged petition, attaching his first amended petition. I grant his motion and direct the Clerk of Court to file Peck's First Amended Petition.[3]

         Peck has also filed a motion asking for accommodations under the Americans with Disabilities Act, [4] in which he alleges that he writes in pain because of the condition of his hand. He asks the court to order the prison to allow him to use a flash drive, a typewriter, or a word processor to generate his legal documents. Instead, having reviewed the claims in the petition, and having considered the possibility that petitioner might need to conduct discovery, I find that the interests of justice are best served by appointing counsel to represent Peck in this writ proceeding.[5] So, I provisionally appoint the Federal Public Defender to represent Peck.

         Because counsel will be in a better position to evaluate what additional relief is needed or procedural steps should be taken at this time, I deny all of Peck's remaining motions without prejudice to counsel's ability to seek the same relief should it be warranted. And because Peck will be represented by counsel from this point forward, I instruct Mr. Peck that he may no longer file documents on his own in a pro se capacity. Local Rule IA 11-6(a) requires that all future filings on behalf of Peck must now be made by appointed counsel.

         IT IS THEREFORE ORDERED that petitioner's motion for leave to file an enlarged petition [ECF No. 19] is GRANTED; the Clerk of Court is directed to FILE the First Amended Petition [ECF No. 19-1].

         IT IS FURTHER ORDERED that the Federal Public Defender is provisionally appointed to represent the petitioner. The Federal Public Defender has until April 22, 2019, to undertake direct representation of the petitioner or indicate to the court his inability to represent petitioner in these proceedings. If the Federal Public Defender undertakes representation of petitioner, he will then have 60 days to file an amended petition for a writ of habeas corpus, if desired. If the Federal Public Defender is unable to represent the petitioner, then the court will appoint alternate counsel. Neither these deadlines nor any extension of them signifies or will signify any implied finding of a basis for tolling. Petitioner always remains responsible for calculating the running of the federal limitation period under 28 U.S.C. § 2244(d)(1) and timely asserting claims.

         IT IS FURTHER ORDERED that the Clerk of Court is directed to ADD Aaron Ford, Attorney General for the State of Nevada, as counsel for respondents.

         IT IS FURTHER ORDERED that respondents' counsel has until April 11, 2019, to enter a notice of appearance, but no further response will be required from respondents until further order of the court.

         IT IS FURTHER ORDERED that the Clerk of Court is directed to ELECTRONICALLY SERVE both the Attorney General of the State of Nevada and the Federal Public Defender with a copy of the first amended petition [ECF No. 19-1] and a copy of this order.

         IT IS FURTHER ORDERED that, notwithstanding Local Rule LR IC 2-2(g), no paper copies of electronically filed exhibits should be provided to chambers or to the staff attorney unless later directed by the Court.

         IT IS FURTHER ORDERED that ALL OTHER MOTIONS [ECF Nos. 20, 23, 25, 26, 27, and 34] are DENIED without prejudice.

---------

Notes:

[1] ECF No. 1-1.


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