Owens v. Williams

Filing 10

ORDER. IT IS ORDERED that, on sua sponte reconsideration, (ECF No. 3) the Court's denial of its prior order of 2 petitioner's motion for appointment of counsel is VACATED and that the motion is GRANTED. The Clerk further shall : (1) attach copies of: (a) the available docket sheets in 3:81-cv-00180-ECR and 2:86-cv-0599-LDG; and (b) the available orders and judgments of dismissal, docket numbers 18, 19, 43 and 44, from 2:86-cv-0599; (2) provide copies of all prior filing s herein to both the AG and the FPD; and (3) send a copy of this order to the pro se petitioner, the Nevada AG, the FPD, and the CJA Coordinator for this division. See Order for details/deadlines. Signed by Judge Richard F. Boulware, II on 6/11/2018 . (Attachments: # 1 3:81-cv-00180-ECR Docket Sheet, # 2 2:86-cv-0599-LDG Docket Sheet, # 3 Docket Nos. 18, 19, 43 & 44) (Copies have been distributed pursuant to the NEF - cc: AG, FPD, CJA, Petitioner - MR) (Attachment 2 replaced on 6/11/2018 to correct size of document) (MR).

1
2
3
4
5
UNITED STATES DISTRICT COURT
6
DISTRICT OF NEVADA
7
8

JACKIE OWENS,

Case No. 2:16-cv-00400-RFB-PAL

9
Petitioner,

ORDER

10
vs.
11
12

BRIAN WILLIAMS, et al.,

13

Respondents.

14
15

This habeas matter under 28 U.S.C. § 2254 comes before the Court on a pending sua

16

sponte inquiry into whether the petition is subject to dismissal for lack of jurisdiction as a

17

successive petition. The prior show-cause order outlines the relevant procedural background.

18

(See ECF No. 4.)

19
20

Following review, the Court sua sponte reconsiders its prior denial without prejudice
of petitioner’s motion for appointment of counsel and grants the motion.

21

Given the age of the old files, the records from petitioner’s prior 1981 and 1986 closed

22

habeas actions were not imaged onto the electronic docketing system, CM/ECF. When the

23

Court sought to obtain the old physical records from the federal archives center in connection

24

with the current show-cause inquiry, court staff was informed that the records had been

25

destroyed in 2011 pursuant to the center’s document “retention” policy. The Clerk has been

26

able to locate copies of the docket sheets from the two cases and of certain orders and

27

judgments from the 1986 action, copies of which will be attached as court exhibits to this

28

order. Judge Reed’s order dismissing the 1981 action further was published. See Owens v.

1

Wolff, 532 F.Supp. 397 (D. Nev. 1981). The Ninth Circuit’s unpublished orders on petitioner’s

2

1986 petition also are available on Westlaw. See Owens v. Sumner, 951 F.2d 361 (9th Cir.

3

1991)(text of unpublished disposition available on Westlaw); Owens v. Sumner, 878 F.2d 386

4

(9th Cir. 1989)(same; action on a prior appeal in the same case). However, these indicia

5

notwithstanding, the official records for the 1981 and 1986 actions apparently no longer exist.1

6

In its independent research, the Court has not as yet located any precedent addressing

7

the impact of the destruction of a prior federal habeas official suit record on the question of

8

whether a later petition properly may be dismissed as successive. It is subject to at least

9

possible debate whether a court can take judicial notice of a prior suit record when the official

10

record no longer exists.

11

The successive-petition issue in this action therefore presents an issue that potentially

12

might warrant the grant of a certificate of appealability in the event of a dismissal of the

13

petition for lack of jurisdiction as a successive petition. The Court accordingly finds that

14

appointment of counsel under 18 U.S.C. § 3006A(a)(2)(B) would be in the interests of justice,

15

so that, inter alia, petitioner’s position on the issue can be effectively presented in this Court

16

and possibly also in the Court of Appeals.

17

investigate whether petitioner has a viable basis to overcome potentially applicable procedural

18

bars and/or to present any other appropriate claims or requests for relief in this Court or the

19

Court of Appeals.

Appointed counsel further will be able to

20

IT IS THEREFORE ORDERED that, on sua sponte reconsideration, the Court’s denial

21

of its prior order (ECF No. 3) of petitioner’s motion (ECF No. 2) for appointment of counsel

22

is VACATED and that the motion is GRANTED. The counsel appointed will represent

23

petitioner in all federal proceedings related to this matter, including any appeals or certiorari

24

proceedings, unless allowed to withdraw.

25
26
27
28

1

Petitioner recently attached a copy of an order of dismissal also from No. 2:82-cv-00151-HEC. (ECF
No. 9, at 2-3.) The Court has not sought to determine as yet whether the official suit record from this similar
vintage action also has been destroyed and/or whether copies of docket sheets and old orders otherwise
remain available. The Court proceeds to appoint counsel now so that this action may proceed forward
expeditiously to an appropriate resolution.

-2-

1

IT IS FURTHER ORDERED that the Federal Public Defender shall be provisionally

2

appointed as counsel and shall have thirty (30) days to undertake direct representation of

3

petitioner or to indicate to the Court the office's inability to represent petitioner in these

4

proceedings. If the Federal Public Defender is unable to represent petitioner, the Court then

5

shall appoint alternate counsel. A deadline for the filing of an amended petition and/or

6

seeking other relief will be set after counsel has entered an appearance.

7

anticipates, given the number of potential claims herein and the associated investigation

8

potentially involved, setting the deadline for approximately one hundred twenty (120) days

9

from entry of the formal order of appointment. Any deadline established and/or any extension

10

thereof will not signify any implied finding of a basis for tolling during the time period

11

established. Petitioner at all times remains responsible for calculating the running of the

12

federal limitation period and timely presenting claims. That is, by setting a deadline to amend

13

the petition and/or by granting any extension thereof, the Court makes no finding or

14

representation that the petition, any amendments, and/or any claims contained therein are

15

not subject to dismissal as untimely. See Sossa v. Diaz, 729 F.3d 1225, 1235 (9th Cir. 2013).

16

IT IS FURTHER ORDERED, so that the respondents may be electronically served with

17

any papers filed through counsel, that the Clerk shall add state attorney general Adam P.

18

Laxalt as counsel for respondents and shall make informal electronic service of this order

19

upon respondents by directing a notice of electronic filing to him. Respondents' counsel shall

20

enter a notice of appearance within twenty-one (21) days of entry of this order, but no further

21

response shall be required from respondents until further order of the Court.

The Court

22

The Clerk further shall: (1) attach, as court exhibits or attachments to this order, copies

23

of: (a) the available docket sheets in 3:81-cv-00180-ECR and 2:86-cv-0599-LDG; and (b) the

24

available orders and judgments of dismissal, docket numbers 18, 19, 43, and 44, from 2:86-

25

cv-0599;2 (2) provide copies of all prior filings herein to both the Attorney General and the

26
27
2

28

Daniel Morgan in the Reno Clerk’s office and Araceli Bareng in the Las Vegas office have access to
the items listed in the text.

-3-

1

Federal Public Defender in a manner consistent with the Clerk's current practice, such as

2

regeneration of notices of electronic filing; and (3) send a copy of this order to the pro se

3

petitioner, the Nevada Attorney General, the Federal Public Defender, and the CJA

4

Coordinator for this division.

5
6

DATED: June 11, 2018.

7
8
9
10

__________________________
RICHARD F. BOULWARE, II
United States District Judge

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-4-