Smith v. Baker et al

Filing 9

ORDER Denying 1 Motion for Permission to File Petition. It is Further Ordered that 3 Motion to Appoint Counsel is Granted. FPD is appointed as Counsel for Petitioner. It Is Further Ordered that 4 Motion for Evidenitary Hearing is denied without Prejudice. Signed by Judge Kent J. Dawson on 5/26/2015. (Copies have been distributed pursuant to the NEF - DC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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MONTRAIL D. SMITH,

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Petitioner,

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vs.

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2:15-cv-00487-KJD-VCF

RENEE BAKER, et al.,

ORDER
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Respondents.
_________________________________/

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This action is a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, by
Montrail D. Smith, a Nevada prisoner.
Smith initiated the case by filing a motion requesting permission to file his petition with

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more than three claims (ECF No. 1); a request for leave to proceed in forma pauperis (ECF No. 2),

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a motion for appointment of counsel (ECF No. 3), and another motion for appointment of counsel

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with a request for an evidentiary hearing (ECF No. 4).

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The court denied the request for leave to proceed in forma pauperis, and required Smith to
pay the $5.00 filing fee (ECF No. 5). Smith paid the filing fee. (ECF Nos. 6, 7).
There is no rule limiting federal habeas corpus petitions to three claims; therefore, Smith’s

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motion requesting permission to file his petition with more than three claims (ECF No. 1) is

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unnecessary, and it will be denied on that ground. Smith may file his habeas corpus petition.

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In light of the severity of the crime for which Smith was convicted, and the prison sentence

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that Smith is serving (two consecutive sentences of 20 years to life), and considering the information

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provided with his request to proceed in forma pauperis and in his motion for appointment of

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counsel, the court will grant Smith’s motion for appointment of counsel (ECF No. 3). The court will

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deny Smith’s motion for an evidentiary hearing (ECF No. 4), without prejudice.

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Therefore, the Federal Public Defender for the District of Nevada (FPD) will be appointed to

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represent Smith in this case. If the FPD is unable to represent Smith, due to a conflict of interest or

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other reason, then alternate counsel will be located and appointed. In either case, counsel will

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represent petitioner in all future federal proceedings relating to this matter, unless allowed to

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withdraw.

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IT IS THEREFORE ORDERED that petitioner’s motion for permission to file his petition

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with more than three claims (ECF No. 1) is DENIED, as it is unnecessary. The court will direct the

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clerk of the court to separately file petitioner’s habeas petition.

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IT IS FURTHER ORDERED that the clerk of the court shall separately file petitioner’s

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petition for writ of habeas corpus, which is currently attached to is request for leave to proceed

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in forma pauperis (ECF No. 2).

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IT IS FURTHER ORDERED that petitioner’s motion for evidentiary hearing (ECF No. 4)
is DENIED without prejudice.
IT IS FURTHER ORDERED that petitioner’s motion for appointment of counsel (ECF

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No. 3) is GRANTED. The Federal Public Defender for the District of Nevada (FPD) is appointed to

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represent petitioner.

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IT IS FURTHER ORDERED that the clerk of the court shall electronically serve on the

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FPD a copy of this order, together with a copy of the petition for writ of habeas corpus. The FPD

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shall have 30 days from the date of entry of this order to file a notice of appearance, or to indicate to

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the court its inability to represent the petitioner in these proceedings.

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IT IS FURTHER ORDERED that the clerk of the court shall electronically serve a copy of

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this order, together with a copy of the petition for writ of habeas corpus, on the respondents.

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Counsel shall appear on behalf of the respondents within 30 days of the entry of this order.

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Respondents need take no further action in this case until otherwise ordered.

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IT IS FURTHER ORDERED that, after counsel has appeared for petitioner, and for

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respondents, the court will issue a scheduling order, which will, among other things, set a deadline

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for the filing of a first amended petition for writ of habeas corpus.

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Dated this _____ day of May, 2015.

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UNITED STATES DISTRICT JUDGE
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