Mortensen v. Nevens et al

Filing 100

ORDER that granting 75 Motion for Substitution of Appointed Counsel is GRANTED. FURTHER ORDERED that 88 Motion to Withdraw as Counsel is GRNTED. The representation of petitioner by Mario Valencia is TERMINATED. FURTHER ORDERED that the clerk o f the court shall forward a copy of this order to the CJA Coordinator, who shall locate substitute counsel for petitioner. The clerk of the court also shall send a copy of this order to petitioner himself, Ronald L. Mortensen. FURTHER ORDERED that [7 6] Motion by Petitioner Adding Declaration is DENIED. FURTHER ORDERED that 80 Motion by Petitioner Adding Second Declaration is DENIED. FURTHER ORDERED that 89 Motion by Petitioner Adding Witness Declaration is DENIED. FURTHER ORDERED that [92 ] Ex Parte Motion Adding Request for Investigator is DENIED. FURTHER ORDERED that 77 Motion for Sanctions is DENIED. FURTHER ORDERED that 95 Request for a Ruling, or a Hearing is GRANTED in part with respect to the issuance of this order. The r equest is DENIED in part with respect to holding a hearing. FURTHER ORDERED that 71 Motion to Substitute Parties is DENIED as moot. FURTHER ORDERED that 78 Motion to Extend Time is GRANTED. Respondents need not file an answer or other response t o the second amended petition (ECF No. 72 ), or to any subsequent amended petition filed by replacement counsel, until ordered by the court. FURTHER ORDERED that respondents will have fourteen (14) days from the date of entry of this order to respon d to the request of counsel in his response, at page 5 (ECF No. 83 ), that the court strike the motion by petitioner adding second declaration (ECF No. 80 ), order opposing counsel and his clients to destroy all copies of the motion in their possession, and order opposing counsel and his clients not to use in any way the information contained in the motion. Signed by Judge Kent J. Dawson on 9/29/16. (Copies have been distributed pursuant to the NEF - MMM)

1
2
3
4
5

UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

6
7
8
9

RONALD LAWRENCE MORTENSEN,

10

Petitioner,

11

vs.

12

DWIGHT D. NEVEN, et al.,

13

Case No. 2:11-cv-00266-KJD-CWH

Respondents.

ORDER

14
15

Ten motions are before the court. The two most important are petitioner’s proper-person

16

motion for substitution of appointed counsel (ECF No. 75) and counsel’s motion to withdraw as

17

counsel (ECF No. 88). Petitioner complains that counsel would not communicate with him, would

18

not raise a claim of actual innocence, and is working for respondents. Petitioner also has filed

19

documents quoting his counsel’s confidential communications to him, which are counsel’s work

20

product. The court agrees with counsel’s initial response (ECF No. 79), but by now the attorney-

21

client relationship has broken down. The court needs to remove counsel from his representation of

22

petitioner.

23

The court will appoint replacement counsel, but petitioner should pay heed to the following.

24

The court determined that, in the interests of justice, petitioner would benefit from appointment of

25

counsel. Counsel is expected to use independent, professional judgment in determining which

26

habeas corpus claims are viable and which are not viable. Counsel also is expected to give advice

27

about the state of petitioner’s case, even if that advice is blunt and unfavorable to petitioner.

28

Everything in the court’s docket shows that current counsel performed his duties well. If the

1

relationship between petitioner and replacement counsel breaks down because petitioner again

2

destroys the attorney-client relationship, the court might determine that the interests of justice no

3

longer require petitioner to be represented by counsel.

4

Petitioner has filed a motion by petitioner adding declaration (ECF No. 76), motion by

5

petitioner adding second declaration (ECF No. 80), and a motion by petitioner adding witness

6

declaration (ECF No. 89). Petitioner’s proper-person motion for substitution of appointed counsel

7

(ECF No. 75) and counsel’s motion to withdraw (ECF No. 88) have convinced the court to remove

8

current counsel and to appoint replacement counsel. The court does not need additional

9

declarations, and the court denies these motions.

10
11
12

Petitioner has filed a motion for sanctions (ECF No. 77) against his attorney. The court
denies this motion.
Petitioner has filed an ex parte motion adding request for investigator (ECF No. 92). The

13

court denies this motion because the court will appoint replacement counsel, who will determine if

14

an investigator is necessary.

15
16
17

Counsel has filed a request for a ruling, or a hearing (ECF No. 95). The court grants this in
part with respect to a ruling, which it is giving now. A hearing is unnecessary.
Before the litigation between petitioner and counsel started, petitioner filed a motion to

18

substitute parties (ECF No. 71). Petitioner seeks to change the respondent from the warden of the

19

High Desert State Prison to the warden of the Lovelock Correctional Center. This motion is moot

20

because petitioner now is held at the Northern Nevada Correctional Center. Replacement counsel

21

may renew this motion, if necessary.

22

Respondents have filed a motion to extend time (ECF No. 78). Respondents want a delay in

23

filing a response to the second amended petition (ECF No. 72). The court grants this motion.

24

Respondents will not need to file an answer or other response to the second amended petition, or to

25

any subsequent amended petition filed by replacement counsel, until ordered by the court.

26

Finally, in counsel’s response (ECF No. 83) to the motion by petitioner adding second

27

declaration (ECF No. 80), counsel objects to petitioner’s disclosure of counsel’s opinion work

28

product. Response, at 3-4 (ECF No. 83). Counsel asks the court to strike the motion, to order
-2-

1

opposing counsel and his clients to destroy all copies of the motion in their possession, and to order

2

opposing counsel and his clients not to use in any way the information contained in the motion. Id.,

3

at 5. Counsel did not file this request as a motion, respondents have not responded to it, and

4

respondents have noted that they deliberately were staying out of the dispute between petitioner and

5

counsel (ECF No. 96). Counsel raises an important issue, and the court is inclined to grant

6

counsel’s request, but the court will give respondents an opportunity to respond first.

7
8
9
10

IT IS THEREFORE ORDERED that the motion for substitution of appointed counsel (ECF
No. 75) is GRANTED.
IT IS FURTHER ORDERED that the motion to withdraw as counsel (ECF No. 88) is
GRANTED. The representation of petitioner by Mario Valencia is TERMINATED.

11

IT IS FURTHER ORDERED that the clerk of the court shall forward a copy of this order to

12

the CJA Coordinator, who shall locate substitute counsel for petitioner. The clerk of the court also

13

shall send a copy of this order to petitioner himself, Ronald L. Mortensen, #54506, Northern Nevada

14

Correctional Center, P.O. Box 7000, Carson City, NV 89702.

15
16
17
18
19
20
21
22

IT IS FURTHER ORDERED that the motion by petitioner adding declaration (ECF No. 76)
is DENIED.
IT IS FURTHER ORDERED that the motion by petitioner adding second declaration (ECF
No. 80) is DENIED.
IT IS FURTHER ORDERED that the motion by petitioner adding witness declaration (ECF
No. 89) is DENIED.
IT IS FURTHER ORDERED that the ex parte motion adding request for investigator (ECF
No. 92) is DENIED.

23

IT IS FURTHER ORDERED that the motion for sanctions (ECF No. 77) is DENIED.

24

IT IS FURTHER ORDERED that the request for a ruling, or a hearing (ECF No. 95) is

25

GRANTED in part with respect to the issuance of this order. The request is DENIED in part with

26

respect to holding a hearing.

27
28

IT IS FURTHER ORDERED that the motion to substitute parties (ECF No. 71) is DENIED
as moot.
-3-

1

IT IS FURTHER ORDERED that respondents’ motion to extend time (ECF No. 78) is

2

GRANTED. Respondents need not file an answer or other response to the second amended petition

3

(ECF No. 72), or to any subsequent amended petition filed by replacement counsel, until ordered by

4

the court.

5

IT IS FURTHER ORDERED that respondents will have fourteen (14) days from the date of

6

entry of this order to respond to the request of counsel in his response, at page 5 (ECF No. 83), that

7

the court strike the motion by petitioner adding second declaration (ECF No. 80), order opposing

8

counsel and his clients to destroy all copies of the motion in their possession, and order opposing

9

counsel and his clients not to use in any way the information contained in the motion.

10

DATED:

September 29, 2016

11
12

_________________________________
KENT J. DAWSON
United States District Judge

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-4-