United States District Court, D. Nevada
P. GORDON, UNITED STATES DISTRICT JUDGE.
Davon Lyons has filed application to proceed in forma
pauperis (ECF No. 1) and a motion for appointment of
counsel (ECF No. 2). I consider those papers and also conduct
an initial review.
seeks to challenge his 2015 Nevada state conviction in No.
C-13-289278. He pleaded guilty to first-degree kidnapping,
two counts of conspiracy to commit robbery, robbery with the
use of a deadly weapon, conspiracy to commit kidnapping,
robbery with the use of a deadly weapon of a victim 60 years
of age or older, burglary, and possession of a stolen
vehicle. He is sentenced in the aggregate to 19 to 60
Nevada Court of Appeals entered an order of affirmance on
direct appeal on August 25, 2015 in No. 67444. The time to
seek certiorari review in the United States Supreme
Court expired 90 days later on Monday, November 23, 2015.
amended judgment of conviction apparently was filed in the
state district court on July 18, 2016. The time to file any
direct appeal vis-à-vis the amended judgment expired
on or about August 17, 2016.
September 19, 2016, Lyons filed a timely state postconviction
petition in the state district court. Proceedings were
pending on that petition through the August 13, 2018 issuance
of the remittitur in the postconviction appeal in No. 72899
in the state appellate courts.
further appears that Lyons may have filed another state
petition on April 26, 2019 that is pending at this time as
No. A-19-793989 in the state district court.
dispatched the federal petition to the Clerk of this Court on
or about June 3, 2019.
on the financial materials presented, Lyons can pay the $5.00
filing fee within a reasonable time. The pauper application
therefore will be denied. The application otherwise
establishes Lyons's financial eligibility for the
appointment of counsel under 18 U.S.C. § 3006(A).
Although I am provisionally appointing counsel, Lyons still
must timely pay the filing fee or this action will be
dismissed without further advance notice.
appointment of counsel is in the interests of justice given:
(a) the number of offenses of which Lyons was convicted; (b)
the length of the aggregate sentence; (c) the number and
complexity of the potential procedural and merits issues
presented, including issues occasioned by possible reliance
on Martinez v. Ryan, 566 U.S. 1 (2012); (d) the
potential complexity of legal issues regarding the base
calculation of the federal limitation period following upon
the apparent filing of an amended judgment of conviction in
the state district court; and (e) the prospect that at least some
time may remain in the federal limitation period under at
least one potential calculation of the limitation period, for
federal habeas counsel to assert claims without reliance upon
relation back for timeliness, pursuant to the two-step
pleading procedure authorized in, for example, McMahon v.
Neven, No. 2:14-cv-00076-APG-CWH, ECF No. 29 (D. Nev.,
May 29, 2014) (approving and explaining the court's
rationale in allowing a bifurcated amendment procedure).
motion for appointment of counsel therefore will be
provisionally granted, subject to Lyons's ...