Phillips v. The State of Nevada Department of Corrections
Filing
35
ORDER. It is therefore ordered that Petitioner Damien Phillips's Motions for Appointment of Stand-In Counsel (ECF Nos. 15 , 25 ), Motion to Amend Petition (ECF No. 24 ) and Motions to Request Action (ECF Nos. 29 , 31 , 33 ) are denied. It is further ordered that Phillips's counsel's Motion to Withdraw (ECF No. 28 ) is denied. It is further ordered that Respondents' Motions to strike (ECF Nos. 22 , 27 ) are granted. The Clerk of the Court is therefore ordere d to strike ECF Nos. 19 , 20 , 21 , 24 , 24 -1, 25 , and 26 from the docket. It is further ordered that Phillips's Motions to Extend (ECF Nos. 30 , 34 ) are granted. Phillips has until April 29, 2024, to file his amended petition. Amended Petition due by 4/29/2024. Signed by District Judge Anne R. Traum on 3/25/2024. (Copies have been distributed pursuant to the NEF - RJDG)
1
2
3
UNITED STATES DISTRICT COURT
4
DISTRICT OF NEVADA
5
DAMIEN PHILLIPS,
6
7
8
v.
Case No. 2:23-cv-00599-ART-BNW
Petitioner,
NEVADA
DEPARTMENT
CORRECTIONS,
9
ORDER
OF
Respondents.
10
11
This habeas matter is before the Court on Petitioner Damien Phillips’s
12
Motions for Appointment of Stand-In Counsel (ECF Nos. 15, 25), Motion to Amend
13
Petition (ECF No. 24), Motions to Request Action (ECF Nos. 29, 31, 33), Motions
14
to Extend (ECF Nos. 30, 34) and Petitioner’s counsel’s Motion to Withdraw (ECF
15
No. 28). Also before the Court is Respondents’ Motions to Strike (ECF Nos. 22,
16
27).
Background
17
18
Phillips challenges a 2020 state court conviction for conspiracy to commit
19
burglary, conspiracy to commit robbery, six counts of burglary while in
20
possession of a deadly weapon, nine counts of robbery with use of a deadly
21
weapon, three counts of assault with a deadly weapon, and one count of assault
22
with a deadly weapon, victim 60 years of age or older. The state court sentenced
23
Phillips to an aggregate term of 24 to 80 years. The Nevada Supreme Court
24
affirmed the conviction.
25
Phillips filed a state petition for writ of habeas corpus. The state court
26
denied his habeas petition and he did not appeal the denial of that petition. On
27
October 13, 2021, Phillips filed another state petition, and the state court denied
28
his second state habeas petition. The Nevada Court of Appeals affirmed the denial
1
1
of relief finding his petition untimely and successive.
2
On April 19, 2023, Phillips filed his federal petition for writ of habeas
3
corpus. ECF No. 2-3. The Court appointed counsel and set a briefing schedule,
4
including a deadline to file an amended petition. ECF Nos. 10, 23.
Discussion
5
6
7
I.
Motion to Withdraw, Motions for Stand-by Counsel, Motion to
Amend Petition, and Motions Requesting Action
8
The Court confirmed the appointment of the Federal Public Defender
9
through Laura Angeline Berrera, Esq. and Jonathan M. Kirshbaum, Esq. as
10
counsel for Phillips, who now move to withdraw as counsel. ECF No. 28. Phillips
11
clarifies that he seeks “stand-by” counsel for guidance and legal assistance, but
12
that he would like to maintain full control and decision-making in his case. See
13
ECF Nos. 15 at 2-3, 24 at 1-2, 25 at 2-3. Following discussions with appointed
14
counsel, including discussion of the benefits of being represented by counsel and
15
the disadvantages of proceeding pro se, Phillips understands that stand-by
16
counsel is not an option in habeas cases, and it is his preference to proceed pro
17
se in this matter. ECF No. 28-1.
18
Courts presiding over federal habeas petitions have the discretion to
19
appoint counsel when justice so dictates. Phillips has no Sixth Amendment right
20
to represent himself in this case because the right to self-representation does not
21
apply to habeas proceedings. See Martinez v. Court of Appeal of California, Fourth
22
Appellate District, 528 U.S. 152 (2000). As the Supreme Court expressed in
23
Martinez, “[t]he requirement of representation of trained counsel implies no
24
disrespect for the individuals inasmuch as it tends to benefit the appellant as
25
well as the court.” Id. at 163.
26
In addition, Rule 6(a) of the Rules Governing Section 2254 Cases (the
27
“Habeas Rules”), instructs that the district court must appoint counsel “[i]f
28
necessary for effective discovery.” And under Habeas Rule 8, a district court must
2
1
appoint counsel if an evidentiary hearing is warranted. Although the Court makes
2
no rulings as to whether a discovery or evidentiary hearing is warranted at this
3
point, sound case management and efficient administration of justice militate in
4
favor of appointing counsel earlier rather than later in a case where either is
5
possible, particularly where, as here, Phillips’s petition likely raises complex
6
issues, including whether his claims are exhausted and/or procedurally
7
defaulted, whether he can demonstrate cause and prejudice to overcome any
8
procedural bars, and whether equitable and/or statutory tolling, and claims of
9
actual innocence apply.
10
Although the Court understands that Phillips wants to proceed pro se, the
11
procedural and substantive complexity of his habeas claims as well as the length
12
of his sentence, reinforces the Court’s decision to exercise its discretion to appoint
13
counsel here. Phillips’s proposed amended petition, alleging claims of ineffective
14
assistance of counsel and unreasonable search and seizure, which spans more
15
than 100 pages, demonstrates the complexity of his claims. ECF No. 32 at 23-
16
137.
17
Phillips is reminded that counsel is not appointed as “stand-by” or “stand-
18
in” counsel and counsel is under no obligation to restate and reassert each and
19
every allegation that a petitioner desires to pursue. Rather counsel is appointed
20
to exercise their independent professional judgment about which allegations,
21
claims, and arguments they believe collectively present the best chance of
22
success. Cf. Jones v. Barnes, 463 U.S. 745 (1983) (counsel is vested with the
23
authority to determine which are the strongest issues and which should be
24
“winnow[ed] out”). The Court cautions Phillips that refusal to cooperate with
25
counsel will not be deemed a conflict-of-interest worthy of removing counsel.
26
McNeal v. Williams, 2023 WL 418643, at *1 (9th Cir. Jan. 26, 2023) (agreeing with
27
the district court that the interests of justice are best served by having counsel
28
represent the petitioner in complex matter and the district court did not abuse
3
1
its discretion in denying petitioner’s motion to dismiss counsel because of
2
petitioner’s disagreement with counsel’s decisions as to which claims to raise in
3
his § 2254 petition).
4
The Court encourages Phillips to communicate with counsel and work with
5
them to develop his case as he has been granted a resource that many pro se
6
litigants ask for but are denied. It remains in Phillips’s best interest to
7
communicate with his counsel as this district’s local rules prevent the Court from
8
entertaining pro se filings when a party is represented by counsel. Phillips may
9
pursue this matter and communicate with the Court only through filings by
10
counsel.
11
Because the Court finds that, on the current record, that appointment of
12
counsel is in the interests of justice, the motion to withdraw is denied. Phillips’s
13
motions for stand-by counsel, motion to amend petition, and motions requesting
14
action are denied.
15
II.
Motions to Strike
16
Respondents move to strike the pro se filings on the basis that petitioner
17
cannot file papers in proper person while represented by counsel. ECF Nos. 19,
18
20, 21, 24, 24-1, 25, and 26. “It is well established that district courts have
19
inherent power to control their docket,” including the power to strike improperly
20
filed items from the docket. Ready Transp. Inc. v. AAR Mfg. Inc., 627 F.3d 402,
21
404 (9th Cir. 2010). Accordingly, the Court grants Respondents’ motions to
22
strike.
23
III.
Motions to Extend
24
Despite filing a motion to withdraw, counsel for Phillips seeks an extension
25
of time to file an amended petition. The Court finds that the request is made in
26
good faith and not solely for the purpose of delay, and therefore, good cause exists
27
to grant the motions. Phillips has until April 29, 2024, to file his amended
28
petition.
4
Conclusion
1
2
It is therefore ordered that Petitioner Damien Phillips’s Motions for
3
Appointment of Stand-In Counsel (ECF Nos. 15, 25), Motion to Amend Petition
4
(ECF No. 24) and Motions to Request Action (ECF Nos. 29, 31, 33) are denied.
5
6
It is further ordered that Phillips’s counsel’s Motion to Withdraw (ECF No.
28) is denied.
7
It is further ordered that Respondents’ Motions to strike (ECF Nos. 22, 27)
8
are granted. The Clerk of the Court is therefore ordered to strike ECF Nos. 19,
9
20, 21, 24, 24-1, 25, and 26 from the docket.
10
11
It is further ordered that Phillips’s Motions to Extend (ECF Nos. 30, 34) are
granted. Phillips has until April 29, 2024, to file his amended petition.
12
13
Dated this 25th day of March 2024.
14
15
16
17
ANNE R. TRAUM
UNITED STATES DISTRICT JUDGE
18
19
20
21
22
23
24
25
26
27
28
5
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?