Holden v. Nevins et al

Filing 79

ORDER. IT IS ORDERED that petitioner will have ninety (90) days from the date of entry of this order to file and serve a motion or notice indicating how petitioner wishes to proceed with this action. If counsel files a motion, then the normal briefing schedule of LR 7-2 will apply. Signed by Judge James C. Mahan on 3/7/2019. (Copies have been distributed pursuant to the NEF - ADR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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JIM BASS HOLDEN,

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Petitioner,

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Case No. 2:13-cv-00668-JCM-GWF
ORDER

v.
WARDEN DWIGHT NEVINS, et al.,

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Respondents.

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This matter is before the court on the appointment of new counsel to represent petitioner.

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ECF No. 78. New counsel will need to decide how to proceed with the case.
Upon reviewing the petition, the court provisionally appointed the Federal Public

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Defender to represent petitioner. ECF No. 5. The Federal Public Defender had a conflict of

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interest and could not represent petitioner. ECF No. 6.
The court then appointed William Gamage to represent petitioner. ECF No. 8. Gamage

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filed a first amended petition for writ of habeas corpus. ECF No. 39. That is the operative

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petition. Respondents have filed an answer. ECF No. 47. Petitioner did not file a reply to the

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answer, and the first amended petition technically is briefed fully and ready for a decision on the

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merits.

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However, petitioner filed a proper-person motion for substitution of appointed counsel.
ECF No. 59. Petitioner was not pleased that Gamage’s first amended petition contained only one
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ground. Petitioner also stated that he could not communicate with Gamage. The court also

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received information that Gamage had abandoned other clients in other actions. The court

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granted petitioner’s proper-person. ECF No. 63. The court appointed Mary Lou Wilson to

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represent petitioner. ECF No. 64. Wilson then filed a motion for leave to file a second amended

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petition. ECF No. 71. The motion repeated petitioner’s complaints about Gamage, supported by

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a newspaper article, court documents, and orders of the Nevada Supreme Court imposing

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sanctions on Gamage. Id. The motion for leave to file a second amended petition is fully briefed

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and ready for decision.

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Wilson then resigned from the CJA panel and moved to withdraw. ECF No. 76. The

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court granted Wilson’s motion. ECF No. 77. The court has appointed Theresa Ristenpart to

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represent petitioner. ECF No. 78.

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The court will give new counsel time to become familiar with the case. Counsel will need

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to decide how to proceed with this action. To repeat, the first amended petition, ECF No. 39, still

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is the operative petition, but petitioner is not pleased with that petition. The motion for leave to

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file a second amended petition, ECF No. 71, still is pending. Counsel might wish to decide to

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proceed with that motion and proposed amended petition. However, if counsel does choose to

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proceed with that motion, then counsel will need to file a separate proposed second amended

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petition, because Wilson included her proposed second amended petition within the motion

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document itself and not as an attachment. See LR 15-1(a). Counsel might wish to withdraw the

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currently pending motion, ECF No. 71, and file a new motion for leave to amend with a new

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proposed second amended petition. Counsel might have another proposal, too.

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IT THEREFORE IS ORDERED that petitioner will have ninety (90) days from the date of

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entry of this order to file and serve a motion or notice indicating how petitioner wishes to proceed

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with this action. If counsel files a motion, then the normal briefing schedule of LR 7-2 will apply.

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DATED: March 7, 2019.

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______________________________
JAMES C. MAHAN
United States District Judge

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