Gonzales v. Director Nevada Department of Corrections et al

Filing 4

ORDER denying Petitioner's 1 Motion/Application for Leave to Proceed in forma pauperis. Petitioner's 3 Motion to Appoint Counsel is granted. Federal Public Defender provisionally appointed and shall have 30 days to indicate to the Court if unable to represent petitioner. State Attorney General Adam P. Laxalt is added as counsel Respondents. Signed by Judge Richard F. Boulware, II on 9/29/2017. (Copies have been distributed pursuant to the NEF - BEL)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 DISTRICT OF NEVADA 7 NOEL LIRIO GONZALES, Case No. 2:16-cv-02015-RFB-CWH 8 Petitioner, 9 ORDER vs. 10 11 DIRECTOR NEVADA DEPARTMENT OF CORRECTIONS, et al., 12 Respondents. 13 14 15 This habeas matter under 28 U.S.C. § 2254 comes before the Court on petitioner’s 16 application (ECF No. 1) to proceed in forma pauperis and his motion (ECF No. 3) for 17 appointment of counsel. 18 19 Petitioner subsequently paid the filing fee, and the Court therefore will deny the pauper motion without prejudice as moot. 20 Turning to the counsel motion, the Court is persuaded that the interests of justice 21 require the appointment of counsel under 18 U.S.C. § 3006A(a)(2)(B) given, inter alia, that: 22 (1) petitioner’s native tongue is Tagalog, such that an interpreter was utilized during 23 petitioner’s state criminal proceedings; (2) petitioner is subject to a substantial aggregate 24 sentence on multiple charges, including one consecutive sentence with a life “tail”; (3) 25 potentially complex procedural issues may be presented given that petitioner pursued state 26 post-conviction relief in the state district court but that court’s online docket sheet does not 27 appear to reflect that petitioner pursued a timely appeal thereafter; and (4) the case may 28 present potentially complex substantive issues given that the direct appeal resulted in a 1 published decision in Gonzales v. State, 354 P.3d 654 (Nev. 2015). The inmate financial 2 materials attached with the counsel motion further establish petitioner’s financial eligibility for 3 appointment of counsel under § 3006A. 4 IT THEREFORE IS ORDERED that petitioner’s application (ECF No. 1) to proceed in 5 forma pauperis is DENIED without prejudice as moot following upon petitioner’s payment of 6 the filing fee, such that the Clerk of Court shall file the petition. 7 IT FURTHER IS ORDERED that petitioner’s motion (ECF No. 3) for appointment of 8 counsel is GRANTED. 9 proceedings related to this matter, including any appeals or certiorari proceedings, unless 10 The counsel appointed will represent petitioner in all federal allowed to withdraw. 11 IT FURTHER IS ORDERED that the Federal Public Defender shall be provisionally 12 appointed as counsel and shall have thirty (30) days to undertake direct representation of 13 petitioner or to indicate to the Court the office's inability to represent petitioner in these 14 proceedings. If the Federal Public Defender is unable to represent petitioner, the Court then 15 shall appoint alternate counsel. A deadline for the filing of an amended petition and/or 16 seeking other relief will be set after counsel has entered an appearance. 17 anticipates setting the deadline, based on the potential issues herein, for approximately one 18 hundred fifty (150) days from entry of the formal order of appointment. Any deadline 19 established and/or any extension thereof will not signify any implied finding of a basis for 20 tolling during the time period established. Petitioner at all times remains responsible for 21 calculating the running of the federal limitation period and timely presenting claims. That is, 22 by setting a deadline to amend the petition and/or by granting any extension thereof, the 23 Court makes no finding or representation that the petition, any amendments thereto, and/or 24 any claims contained therein are not subject to dismissal as untimely. See Sossa v. Diaz, 729 25 F.3d 1225, 1235 (9th Cir. 2013). The Court's action herein further is without prejudice to any 26 applicable defenses, including untimeliness, that may be raised by the respondents following 27 the filing of a counseled petition. Counsel should note that petitioner’s warden should 28 be named as an additional respondent in any amended petition. -2- The Court 1 IT FURTHER IS ORDERED, so that the respondents may be electronically served 2 with any papers filed through counsel, that the Clerk shall add State Attorney General 3 Adam P. Laxalt as counsel for respondents and shall make informal electronic service of 4 this order upon respondents by directing a notice of electronic filing to him. Respondents' 5 counsel shall enter a notice of appearance within twenty-one (21) days of entry of this 6 order, but no further response shall be required from respondents until further order of the 7 Court. The Clerk accordingly shall send a copy of this order to the pro se petitioner, the 8 Nevada Attorney General, the Federal Public Defender, and the CJA Coordinator for this 9 division. 10 The Clerk further shall provide copies of all prior filings herein to both the Attorney 11 General and the Federal Public Defender in a manner consistent with the Clerk's current 12 practice, such as regeneration of notices of electronic filing. 13 14 DATED this 29th day of September, 2017. 15 16 17 18 ________________________________ RICHARD F. BOULWARE, II United States District Judge 19 20 21 22 23 24 25 26 27 28 -3-

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