Cross v. Williams

Filing 7

ORDER. IT IS ORDERED that 5 petitioner's Ex Parte Request for Appointment of Counsel is GRANTED. The Federal Public Defender for the District of Nevada (FPD) is appointed to represent petitioner. IT IS FURTHER ORDERED that the Clerk of th e Court shall electronically serve upon the FPD a copy of this order, together with a copy of 1 -1 the petitioner's petition for writ of habeas corpus. IT IS FURTHER ORDERED that the Clerk of the Court shall add Adam Paul Laxalt, Attorney G eneral of the State of Nevada, as counsel for respondents. IT IS FURTHER ORDERED that the Clerk of the Court shall electronically serve upon respondents a copy of 1 -1 the petition for writ of habeas corpus, and a copy of this order. IT IS FURTHER ORDERED that the court will establish a schedule for further proceedings after counsel appear for the petitioner and the respondents. See Order for further details/deadlines. Signed by Judge James C. Mahan on 5/17/17. (Copies have been distributed pursuant to the NEF - MR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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JERRY CROSS,

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Petitioner,

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vs.

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2:17-cv-00290-JCM-VCF

BRIAN WILLIAMS, SR., et al.,

ORDER
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Respondents.
_______________________________/

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In this habeas corpus case, the court has ordered the petitioner, Nevada prisoner Jerry Cross,

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to either pay the $5 filing fee or file a new and complete application to proceed in forma pauperis,

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including the required financial certificate, by March 24, 2017. See Order entered February 6, 2017

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(ECF No. 3). Upon a motion by Cross, the court subsequently extended that deadline to April 28,

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2017. See Order entered March 10, 2017 (ECF No. 6). Cross did not pay the filing fee or file a new

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application to proceed in forma pauperis by April 28, 2017.

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Rather, on March 9, 2017, Cross filed a motion for appointment of counsel (ECF No. 5). The

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Court will grant Cross’ motion for appointment of counsel. “Indigent state prisoners applying for

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habeas corpus relief are not entitled to appointed counsel unless the circumstances of a particular

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case indicate that appointed counsel is necessary to prevent due process violations.” Chaney v.

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Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986) (citing Kreiling v. Field, 431 F.2d 638, 640 (9th Cir.

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1970) (per curiam). The court may, however, appoint counsel at any stage of the proceedings “if the

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interests of justice so require.” See 18 U.S.C. § 3006A; see also Rule 8(c), Rules Governing § 2254

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Cases; Chaney, 801 F.2d at 1196. Cross states that he has a learning disability, mental illness, and

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short term memory loss, and he indicates that he has limited ability to read and write. It appears that

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Cross will not be able to adequately present his case without counsel. Therefore, the Court finds that

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appointment of counsel is in the interests of justice.

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Therefore, the court will suspend the requirement that Cross pay the filing fee or file a new

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application to proceed in forma pauperis. The court will order the original petition in this case

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served upon respondents, will direct respondents to appear, but will not require any further action on

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the part of respondents at this time.

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IT IS THEREFORE ORDERED that petitioner's Ex Parte Request for Appointment of

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Counsel (ECF No. 5) is GRANTED. The Federal Public Defender for the District of Nevada (FPD)

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is appointed to represent petitioner. If the FPD is unable to represent the petitioner, due to a conflict

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of interest or other reason, then alternate counsel will be appointed. In either case, counsel will

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represent the petitioner in all federal-court proceedings relating to this matter, unless allowed to

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withdraw.

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IT IS FURTHER ORDERED that the Clerk of the Court shall electronically serve upon the

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FPD a copy of this order, together with a copy of the petitioner’s petition for writ of habeas corpus

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(ECF No. 1-1).

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IT IS FURTHER ORDERED that the FPD shall have 20 days from the date of entry of this

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order to file a notice of appearance, or to indicate to the Court its inability to represent the petitioner

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in this case.

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IT IS FURTHER ORDERED that the time for petitioner to pay the filing fee for this action,

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or file a new application to proceed in forma pauperis is extended. The court will set a new deadline

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in that regard after counsel appear for the petitioner and the respondents.

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IT IS FURTHER ORDERED that the Clerk of the Court shall add Adam Paul Laxalt,
Attorney General of the State of Nevada, as counsel for respondents.

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IT IS FURTHER ORDERED that the Clerk of the Court shall electronically serve upon

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respondents a copy of the petition for writ of habeas corpus (ECF No. 1-1), and a copy of this order.

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IT IS FURTHER ORDERED that respondents shall have 20 days from the date on which

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the petition is served upon them to appear in this action. Respondents will not be required to

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respond to the habeas petition at this time.

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IT IS FURTHER ORDERED that the court will establish a schedule for further
proceedings after counsel appear for the petitioner and the respondents.

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May 17, 2017.
Dated this _____ day of May, 2017.

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UNITED STATES DISTRICT JUDGE
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