Harsh v. Gentry et al

Filing 5

ORDER - Petitioner's IFP application (ECF No. 1 ) denied as moot. Clerk shall file the petition and papers accompanying the IFP application, including the motion for counsel; and that motion for appointment of counsel is granted. FPD is provisionally appointed as counsel and will have until 11/4/2017 to undertake direct representation of petitioner or to indicate to the Court the office's inability to do so. Clerk will add AG as counsel for respondents and will E-serve this order upon respondents. (E-service 10/5/2017.) Respondents' counsel must enter a notice of appearance by 10/26/2017. The Clerk accordingly will send a copy of this order to the pro se petitioner, the AG, the FPD, and the CJA Coordinator. (E-s ervice ot AG, FPD, and CJA Coord.; paper copy to P, ON 10/5/2017.) Clerk further will provide copies of all prior filings herein to both the AG and FPD. (E-service via NEF regeneration ECF Nos. 1 - 4 to AG and FPD on 10/5/2017 ) Signed by Judge Miranda M. Du on 10/4/2017. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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THOMAS HARSH,

Case No. 2:17-cv-02069-MMD-NJK
Petitioner,

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ORDER

v.
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JO GENTRY, et al.,
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Respondents.
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This habeas matter under 28 U.S.C. § 2254 comes before the Court on petitioner’s

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application (ECF No. 1) to proceed in forma pauperis and his motion (ECF No. 1-4) for

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appointment of counsel submitted with the petition.

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Petitioner has paid the filing fee, and the pauper application therefore will be
denied as moot.

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On petitioner’s motion for appointment of counsel, the financial exhibits (ECF No.

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3) submitted establish petitioner’s financial eligibility for appointment of counsel under 18

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U.S.C. § 3006A. The Court finds that appointment of counsel is in the interests of justice

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given the potential complexity of the legal issues presented, petitioner’s lengthy sentence

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of ten to life as a habitual criminal, and the possibility that substantial time may remain in

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the federal limitation period under 28 U.S.C. § 2244(d), allowing federal habeas counsel

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the opportunity to investigate and pursue available claims potentially without relation back

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concerns. However, petitioner at all times remains responsible for properly calculating the

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running of the limitation period and timely presenting claims.

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It is therefore ordered that petitioner’s application (ECF No. 1) to proceed in forma
pauperis is denied as moot.

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It is further ordered that, the filing fee having been paid, the Clerk of Court will file

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the petition and papers accompanying the pauper application, including the motion for

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appointment of counsel; that the motion for appointment of counsel is granted; and that

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the Clerk shall reflect the grant of the motion when docketing the motion. The counsel

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appointed will represent petitioner in all federal proceedings related to this matter,

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including any appeals or certiorari proceedings, unless allowed to withdraw.

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It is further ordered that the Federal Public Defender shall be provisionally

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

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

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

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then shall appoint alternate counsel. A deadline for the filing of an amended petition

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and/or seeking other relief will be set after counsel has entered an appearance. The Court

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anticipates setting the deadline for approximately one hundred twenty (120) days from

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

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

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

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

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

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

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therein are not subject to dismissal as untimely. See Sossa v. Diaz, 729 F.3d 1225, 1235

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(9th Cir. 2013).

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It is further is ordered, so that the respondents may be electronically served with

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

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

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

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must enter a notice of appearance within twenty-one (21) days of entry of this order, but

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no further response will be required from respondents until further order of the Court.

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The Clerk accordingly will send a copy of this order to the pro se petitioner, the

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Nevada Attorney General, the Federal Public Defender, and the CJA Coordinator for this

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division.

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The Clerk further will provide copies of all prior filings herein to both the Attorney

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General and the Federal Public Defender in a manner consistent with the Clerk's current

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practice, such as regeneration of notices of electronic filing.

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DATED THIS 4th day of October 2017.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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