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Lyons v. Williams

United States District Court, D. Nevada

June 11, 2019

DAVON LYONS, Petitioner,
v.
WARDEN BRIAN WILLIAMS, et al., Respondents.

          ORDER

          ANDREW P. GORDON, UNITED STATES DISTRICT JUDGE.

         Petitioner 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.

         Background

         Lyons 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 years.[1]

         The 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.

         An 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.

         On 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.

         It 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.

         Lyons dispatched the federal petition to the Clerk of this Court on or about June 3, 2019.

         Pauper Application

         Based 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.

         Counsel Motion

         The 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;[2] 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).

         The motion for appointment of counsel therefore will be provisionally granted, subject to Lyons's ...


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