Marks v. Williams et al

Filing 3

ORDER. IT IS ORDERED that 1 petitioner's Application to Proceed In Forma Pauperis is GRANTED. IT IS FURTHER ORDERED that the clerk of the court shall separately file the petition for writ of habeas corpus 1 -1. IT IS FURTHER ORDERED tha t the clerk of the court shall add Adam Paul Laxalt, Attorney General of the State of Nevada, as counsel for respondents. IT IS FURTHER ORDERED that 2 petitioner's Motion for Appointment of Counsel is GRANTED. The Federal Public Defender for the District of Nevada (FPD) is appointed to represent petitioner. See Order for additional information. Signed by Judge James C. Mahan on 6/1/17. (Copies have been distributed pursuant to the NEF - cc: Adam Laxalt, FPD - ADR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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JOHN JOEY MARKS,

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Petitioner,

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vs.

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BRIAN WILLIAMS, et al.,

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2:17-cv-01413-JCM-PAL

Respondents.

ORDER

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_________________________________/

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This action is a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, by

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John Joey Marks, a Nevada prisoner. Marks initiated this action on May 16, 2017, by filing an

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application to proceed in forma pauperis (ECF No. 1), along with his habeas corpus petition

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(attached to application to proceed in forma pauperis at ECF No. 1-1), and a motion for appointment

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of counsel (ECF No. 2).

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The financial information submitted with Marks’ application to proceed in forma pauperis

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indicates that he is unable to pay the filing fee for this action. Therefore, the in forma pauperis

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application will be granted, and he will not be required to pay the filing fee.

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The court has examined Marks’ petition, pursuant to Rule 4 of the Rules Governing Section

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2254 Cases in the United States District Courts, and determines that it merits service upon the

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respondents. Respondents will not be required to respond to the petition at this time, however, as the

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court anticipates that, with counsel, Marks will likely file an amended petition.

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The court will grant Marks’ motion for appointment of counsel. “Indigent state prisoners

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

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

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

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(9th Cir. 1970) (per curiam)). The court may, however, appoint counsel at any stage of the

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

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Governing § 2254 Cases; Chaney, 801 F.2d at 1196. Appointment of counsel appears to be in the

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interests of justice in this case; Marks states that he cannot read or write. The court will appoint

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counsel to represent Marks in this action.
IT IS THEREFORE ORDERED that petitioner’s Application to Proceed In Forma

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Pauperis (ECF No. 1) is GRANTED. Petitioner is granted leave to proceed in forma pauperis.

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Petitioner will not be required to pay the filing fee for this action.

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IT IS FURTHER ORDERED that the clerk of the court shall separately file the petition for

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writ of habeas corpus, which is currently attached to the in forma pauperis application, at ECF No.

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1-1.

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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.
IT IS FURTHER ORDERED that the clerk of the court shall electronically serve upon
respondents a copy of the petition for writ of habeas corpus, and a copy of this order.
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 petitioner’s Motion for Appointment of Counsel (ECF

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No. 2) is GRANTED. The Federal Public Defender for the District of Nevada (FPD) is appointed to

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represent petitioner. If the FPD is unable to represent the petitioner, due to a conflict of interest or

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other reason, then alternate counsel will be appointed. In either case, counsel will represent the

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petitioner in all federal-court proceedings relating to this matter, unless allowed to withdraw.

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IT IS FURTHER ORDERED that the clerk of the court shall electronically serve upon the
FPD a copy of this order, together with a copy of the petition for writ of habeas corpus.
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 court will establish a schedule for further
proceedings after counsel appear for both petitioner and the respondents.

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Dated this _____ day of ______________________, 2017.
June 1, 2017.

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UNITED STATES DISTRICT JUDGE

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