United States District Court, D. Nevada
M. NAVARRO, CHIEF UNITED STATES DISTRICT JUDGE
has paid the filing fee. The court has reviewed the petition
under Rule 4 of the Rules Governing Section 2254 Cases in the
United States District Courts. Petitioner also has filed a
motion for appointment of counsel (ECF No. 2).
pleaded guilty to burglary, conspiracy, robbery with the use
of a deadly weapon, and kidnaping. Petitioner's sentences
in the aggregate are 48 years. The state district court
entered the original judgment of conviction on August 7,
2014. Petitioner appealed, and the Nevada Court
of Appeals affirmed on February 4, 2015.
the state district court, an amended judgment of conviction
was entered on March 19, 2015. Petitioner filed a motion to
modify his sentence on August 18, 2015. The state district
court denied the motion on September 23, 2015.
then filed a post-conviction habeas corpus petition on
February 10, 2016. The state district court denied the
petition. The Nevada Court of Appeals affirmed the denial on
April 11, 2018. The Nevada Supreme Court issued its
remittitur on May 8, 2018.
mailed his current federal habeas corpus petition to this
court on November 24, 2018. By the court's preliminary
calculations, petitioner commenced this action after
expiration of the one-year limitation period of 28 U.S.C.
has not yet established financial eligibility for appointment
of counsel under 18 U.S.C. § 3006A. The court directed
petitioner either to pay the filing fee or to file a complete
application to proceed in forma pauperis. Petitioner
did the former. Consequently, the court does not have the
required financial information.
the court will appoint counsel provisionally. The court bases
appointment of counsel upon petitioner's lengthy
aggregate sentence, the issue of petitioner's mental
health at the time of his plea, and the potential
untimeliness of this action. The court conditions this
appointment upon petitioner filing a complete application to
proceed in forma pauperis. If petitioner fails to
file a complete application within the time period, then the
court will vacate the provisional appointment of counsel.
THEREFORE IS ORDERED that the clerk of the court file the
petition for a writ of habeas corpus.
FURTHER IS ORDERED that petitioner's motion for
appointment of counsel (ECF No. 2) is
GRANTED provisionally, subject to petitioner
establishing his financial eligibility for appointment of
FURTHER IS ORDERED that petitioner file another application
for leave to proceed in forma pauperis, accompanied
by a signed financial certificate and a statement of his
inmate account. The clerk of the court shall send petitioner
a blank application form for incarcerated litigants. If
petitioner does not file the application within thirty (30)
days from the date of entry of this order, then the court
will vacate the provisional appointment of counsel.
FURTHER IS ORDERED that the Federal Public Defender is
appointed provisionally a counsel. The Federal Public
Defender will have thirty (30) days from the date of entry of
this order either to undertake representation of petitioner
or to indicate to the court the office's inability to
represent petitioner. If the Federal Public Defender is
unable to represent petitioner, then the court will appoint
alternate counsel, subject again to establishment of
financial eligibility. The court will set a deadline for
filing of an amended petition or a motion seeking other
relief after counsel has appeared. The court anticipates
setting the deadline for ninety (90) days from entry of the
formal order of appointment. The court does not signify any
implied finding of tolling during any time period established
or any extension granted. Petitioner always remains
responsible for calculating the limitation period of 28
U.S.C. § 2244(d)(1) and timely presenting claims. The
court makes no representation that the petition, any
amendments to the petition, and any claims in the petition or
amendments are not subject to dismissal as untimely. See
Sossa v. Diaz, 729 F.3d 1225, 1235 (9th Cir. 2013).
FURTHER IS ORDERED that the clerk add Aaron Ford, Attorney
General for the State of Nevada, as counsel for respondents.
FURTHER IS ORDERED that the clerk electronically serve both
the Attorney General of the State of Nevada and the Federal
Public Defender a ...