O'Keefe v. Gillespie et al

Filing 44

ORDER Striking Petitioner's Proper Person 42 and 43 Motions. Petitioner's counsel shall forward a copy of this Order to Petitioner. The Clerk shall designate Petitioner when seeking to proceed in proper person only as a Restricted Filer in this action and shall return all papers submitted in proper person. Signed by Judge James C. Mahan on 8/19/2014. (Copies have been distributed pursuant to the NEF - SLD)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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BRIAN KERRY O’KEEFE,
Petitioner,

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2:11-cv-02109-JCM-VCF

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vs.

ORDER

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SHERIFF DOUG GILLESPIE, et al.,
Respondents.

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This represented habeas matter comes before the court on petitioner’s proper person

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motion (#42) for the court to act sua sponte and address an alleged docketing error and

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motion (#43) for production of transcripts at government expense.

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The court states now for the third time that petitioner may not file any proper person

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papers while represented by counsel. Petitioner does not have a constitutional right either

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to pursue a matter both through counsel and in proper person or indeed to pursue a matter

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in proper person without counsel. See, e.g., United States v. Bergman, 813 F.2d 1027, 1030

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(9th Cir.1987); United States v. Halbert, 640 F.2d 1000, 1009 (9th Cir.1981); cf. Martinez v.

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Court of Appeal of California, 528 U.S. 152 (2000)(a criminal defendant has no right of

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self-representation on direct appeal). As the court also has stated previously, the appellate

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court’s orders regarding petitioner’s proper person filings in that court pertain to filings in that

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court, not in the district court.

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The court further notes that the current motions do not pertain to a counsel issue, and

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the court in any event already has ruled that petitioner must pursue any issues in that regard

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in the court of appeals. See #32.

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Having to repeat the same very simple point three times is enough. The court will

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direct the clerk to designate petitioner – in proper person – as a restricted filer on the docket

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sheet and to return unfiled to petitioner – with a copy to petitioner’s counsel – all papers

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submitted in this action in proper person. What relief is to be requested in the district court

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is a matter to be determined by petitioner’s appointed counsel. If petitioner should seek in

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proper person to present a paper in the district court regarding a counsel issue, past practice

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by the federal public defender in numerous actions as to such issues readily confirms that the

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public defender promptly will file a notice in the record that such relief is being sought by the

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petitioner in proper person. The court then will proceed as then is warranted.

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IT THEREFORE IS ORDERED that petitioner’s proper person motions (## 42 and 43)
are STRICKEN.
IT FURTHER IS ORDERED that petitioner’s counsel shall forward a copy of this order
to petitioner.

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IT FURTHER IS ORDERED that the clerk shall designate petitioner – when seeking

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to proceed in proper person only – as a restricted filer in this action and shall return all papers

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submitted in proper person in this action by petitioner to petitioner, with a copy to petitioner’s

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counsel. To be clear, the restricted filer designation applies only to this action to papers

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tendered in proper person for filing in this action.

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DATED: August 19, 2014.

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_________________________________
JAMES C. MAHAN
United States District Judge

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