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Washington v. Gittere

United States District Court, D. Nevada

May 16, 2019

MARCUS WASHINGTON, Petitioner,
v.
WARDEN WILLIAM GITTERE, et al., Respondents.

          ORDER

          MIRANDA M. DU, UNITED STATES DISTRICT JUDGE

         This habeas matter under 28 U.S.C. § 2254 by Marcus Washington (“Petitioner” or “Washington”) comes before the Court on his application to proceed in forma pauperis (ECF No. 1) and motion for appointment of counsel (currently at ECF No. 1-2).

         I. PAUPER APPLICATION (ECF NO. 1)

         The pauper application is incomplete and will be denied without prejudice. Petitioner did not attach the financial documents required for an inmate to demonstrate pauper status. Under 28 U.S.C. § 1915(a)(2) and Local Rule LSR 1-2, a petitioner must attach both an inmate account statement for the past six months and a properly executed financial certificate with the pauper application. Petitioner attached neither.

         Petitioner must either pay the filing fee or demonstrate pauper status before the action will proceed forward. However, as discussed further below, the Court finds that a provisional grant of the motion for appointment of counsel is in the interests of justice, assuming financial eligibility.

         However, Petitioner still must timely: (a) pay the filing fee or submit a proper pauper application; and (b) even if he pays the fee, submit an inmate account statement for the past six months that demonstrates his financial eligibility for appointment of counsel. If he fails to timely pay the filing fee or submit a proper pauper application, the action will be dismissed without further advance notice. If he fails to demonstrate financial eligibility, the provisional appointment of counsel will not be confirmed.

         With these qualifications, the Court turns to the motion for appointment of counsel.

         II. COUNSEL MOTION (ECF NO. 1-2)

         Provisionally assuming financial eligibility, the Court finds that appointment of counsel is in the interests of justice, considering, inter alia: (a) the sentence, on the conviction for first-degree murder with the use of a deadly weapon, of life without the possibility of parole and a consecutive sentence of 96 to 240 months; (b) the number, complexity and potential substantiality of the potential procedural and substantive issues pertaining to what appears to have been tried as a capital case; (c) the questionable pleading ability demonstrated by Petitioner to date in a federal petition that consists essentially only of copies of his counsel's appellate briefing in the two state court appeals; and (d) the possibility that Petitioner may have substantial time remaining within the federal limitation period for federal habeas counsel to assert claims without having to rely on relation back for timeliness.[1]

         The motion for appointment of counsel therefore will be provisionally granted, subject both to timely satisfaction of the filing fee requirement and confirmation of Petitioner's financial eligibility for appointment of counsel.

         III. CONCLUSION

         It is therefore ordered that Petitioner's application to proceed in forma pauperis (ECF No. 1) is denied without prejudice. Washington must either pay the $5.00 filing fee or submit a properly completed pauper application within 30 days of entry of this order. This action will be dismissed without further advance notice if he fails to do so.

         It is further ordered that the Clerk of Court file the Petition.[2]

         It is further ordered that the Clerk file the motion for appointment of counsel that was submitted with the Petition, that the motion is provisionally granted as set forth herein, and that the Clerk indicate the provisional grant of the motion in the docket entry for this order. The counsel appointed will represent Petitioner in all federal proceedings related to this matter, including any appeals or certiorari proceedings, unless allowed to withdraw. The provisional grant of the motion is subject to Washington, within 30 days of entry of this order: (a) paying the filing fee or submitting a proper pauper application establishing pauper status, as directed above; and (b) if a ...


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