George W. Luster, Jr. VS Director Nevada Dept of Corrections, etal

Filing 138

ORDER that, 98 Letter is stricken, and petitioner shall not communicate with the Court other than through counsel. Granting in part and Denying in part 137 Motion to stay consideration of 133 motion to withdraw. Denying wit hout prejudice 133 Motion to Withdraw as Attorney. Within 10 days of entry of this order, petitioners counsel shall file a notice that counsel has provided petitioner with a copy of this order. Signed by Judge Roger L. Hunt on 4/3/2013. (Copies have been distributed pursuant to the NEF - SLR)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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GEORGE W. LUSTER, JR.,
Petitioner,

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2:04-cv-00334-RLH-NJK

vs.
ORDER

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DIRECTOR, NEVADA DEPARTMENT
OF CORRECTIONS, et al.,
Respondents.

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This habeas matter comes before the Court on petitioner’s counsel’s motion (#133) to

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withdraw as counsel and on petitioner’s motion (#137) to stay consideration of the motion to

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withdraw.

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The Court will grant the motion to stay consideration to withdraw to the extent that the

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Court will deny the motion to withdraw without prejudice. Counsel can file a new motion to

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withdraw if and as the circumstances warrant.1

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The Court takes this action with one major caveat. The Court, repeatedly, has stated

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in this case that petitioner may communicate with the Court only through counsel. For

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example, in a May 16, 2011, order, the Court stated:

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This Court’s April 20, 2011, order could not have been
more clear or emphatic: . . . . “that petitioner shall not file any
papers pro se, and he shall not communicate otherwise with the
Court except through counsel.”

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Counsel needs to select a proper description on CM/ECF when she files a motion. The description
selected by counsel has no correlation to the actual motion. Misleading docket descriptions will not suffice.

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. . . . Petitioner further has directly violated the order by
filing a pro se submission. He acknowledges receipt of the order,
seeks to explain his prior pro se filing, and indicates that “I’ll call
you soon to further discuss the matter.” The words “shall not file”
and “shall not communicate” mean what they say. If petitioner
has explanations, apologies, or other communications to present
to the Court, he must present them through counsel.
The Court advised petitioner in the prior order as follows:
“Any further violations of the Court’s orders in [this] regard may
lead to the imposition of sanctions, including dismissal of the
petition.” Petitioner previously has been advised in this case that
he must communicate with the Court only through counsel, yet he
continues to communicate with the Court pro se. The Court has
few effective sanctions in this matter short of dismissal to secure
compliance with its orders following upon repeated refusals to
comply, as it appears that petitioner is without funds and is
incarcerated under sentences of life without the benefit of parole.
If petitioner continues to seek to communicate with the Court pro
se, he will be directed to show cause forthwith – through counsel
– why the petition should not be dismissed for his failure to
comply with the repeated orders of this Court.

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.....

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Further disregard of the Court’s orders – by counsel and/or
by petitioner – will lead to harsher action being taken.

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.....

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IT FURTHER IS ORDERED that, within ten (10) days of
entry of this order, petitioner’s counsel additionally shall file a
notice that counsel has provided petitioner with a copy of this
order.

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IT FURTHER IS ORDERED that #98 is STRICKEN and,
once again, that petitioner shall not communicate with the
Court other than through counsel.

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#99, at 1-2 (emphasis in original).

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That would seem to be a clear order.

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Petitioner nonetheless has submitted multiple pro se communications (## 129, 130,

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132 & 136) to the Court since the time of the last, seemingly clear, order.

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The Court’s delay in screening the last amended pleading after counsel presented a

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prior pleading with numerous deficiencies does not provide any reason or justification

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whatsoever for these pro se filings. Any request for expedited or other relief in the district

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court must be presented by counsel and not petitioner pro se. Counsel has demonstrated
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that she has the ability to file court papers seeking expedited relief, albeit not in a filing first

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in this Court. Nor is there any occasion for petitioner to file pro se copies of letters sent to

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counsel requesting that she take certain action. Further, petitioner may not request status

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updates or copies of documents from the Court or the Clerk; he must make those requests

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to his counsel. In short, as this Court thought that it had repeatedly made clear in this action:

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“petitioner shall not communicate with the Court other than through counsel.”

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Petitioner has run out of warnings.

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If following notification of this order, petitioner presents the Court with any further pro

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se papers – other than a response to a then-pending motion to withdraw counsel – petitioner

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thereafter will be directed to show cause through counsel why the matter should not be

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dismissed for failure to comply with the repeated orders of the Court. Unless and until such

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time as petitioner is copied with an order from this Court granting a motion to withdraw as

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counsel without appointment of replacement counsel, petitioner shall make all status inquiries

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to counsel, not the Court, including as to the status of a motion to withdraw. Delay in the

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Court reaching a submission, again, does not provide cause for petitioner to communicate

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with the Court pro se rather than through counsel.

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IT THEREFORE IS ORDERED that petitioner’s motion (#137) to stay consideration of

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the motion (#133) to withdraw is GRANTED IN PART and DENIED IN PART, to the extent

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that petitioner’s counsel’s motion (#133) to withdraw as counsel is DENIED without prejudice.

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IT FURTHER IS ORDERED that, within ten (10) days of entry of this order, petitioner’s

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counsel additionally shall file a notice that counsel has provided petitioner with a copy of this

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order.

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DATED: April 3, 2013.

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_________________________________
ROGER L. HUNT
United States District Judge

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