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)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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DAMIEN PHILLIPS,

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v.

Case No. 2:23-cv-00599-ART-BNW
Petitioner,

NEVADA
DEPARTMENT
CORRECTIONS,

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ORDER

OF

Respondents.

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This habeas matter is before the Court on Petitioner Damien Phillips’s

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Motions for Appointment of Stand-In Counsel (ECF Nos. 15, 25), Motion to Amend

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Petition (ECF No. 24), Motions to Request Action (ECF Nos. 29, 31, 33), Motions

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to Extend (ECF Nos. 30, 34) and Petitioner’s counsel’s Motion to Withdraw (ECF

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No. 28). Also before the Court is Respondents’ Motions to Strike (ECF Nos. 22,

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27).
Background

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Phillips challenges a 2020 state court conviction for conspiracy to commit

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burglary, conspiracy to commit robbery, six counts of burglary while in

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possession of a deadly weapon, nine counts of robbery with use of a deadly

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weapon, three counts of assault with a deadly weapon, and one count of assault

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with a deadly weapon, victim 60 years of age or older. The state court sentenced

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Phillips to an aggregate term of 24 to 80 years. The Nevada Supreme Court

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affirmed the conviction.

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Phillips filed a state petition for writ of habeas corpus. The state court

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denied his habeas petition and he did not appeal the denial of that petition. On

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October 13, 2021, Phillips filed another state petition, and the state court denied

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his second state habeas petition. The Nevada Court of Appeals affirmed the denial

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of relief finding his petition untimely and successive.

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On April 19, 2023, Phillips filed his federal petition for writ of habeas

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corpus. ECF No. 2-3. The Court appointed counsel and set a briefing schedule,

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including a deadline to file an amended petition. ECF Nos. 10, 23.
Discussion

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I.

Motion to Withdraw, Motions for Stand-by Counsel, Motion to
Amend Petition, and Motions Requesting Action

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The Court confirmed the appointment of the Federal Public Defender

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through Laura Angeline Berrera, Esq. and Jonathan M. Kirshbaum, Esq. as

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counsel for Phillips, who now move to withdraw as counsel. ECF No. 28. Phillips

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clarifies that he seeks “stand-by” counsel for guidance and legal assistance, but

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that he would like to maintain full control and decision-making in his case. See

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ECF Nos. 15 at 2-3, 24 at 1-2, 25 at 2-3. Following discussions with appointed

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counsel, including discussion of the benefits of being represented by counsel and

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the disadvantages of proceeding pro se, Phillips understands that stand-by

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counsel is not an option in habeas cases, and it is his preference to proceed pro

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se in this matter. ECF No. 28-1.

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Courts presiding over federal habeas petitions have the discretion to

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appoint counsel when justice so dictates. Phillips has no Sixth Amendment right

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to represent himself in this case because the right to self-representation does not

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apply to habeas proceedings. See Martinez v. Court of Appeal of California, Fourth

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Appellate District, 528 U.S. 152 (2000). As the Supreme Court expressed in

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Martinez, “[t]he requirement of representation of trained counsel implies no

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disrespect for the individuals inasmuch as it tends to benefit the appellant as

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well as the court.” Id. at 163.

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In addition, Rule 6(a) of the Rules Governing Section 2254 Cases (the

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“Habeas Rules”), instructs that the district court must appoint counsel “[i]f

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necessary for effective discovery.” And under Habeas Rule 8, a district court must

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appoint counsel if an evidentiary hearing is warranted. Although the Court makes

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no rulings as to whether a discovery or evidentiary hearing is warranted at this

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point, sound case management and efficient administration of justice militate in

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favor of appointing counsel earlier rather than later in a case where either is

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possible, particularly where, as here, Phillips’s petition likely raises complex

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issues, including whether his claims are exhausted and/or procedurally

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defaulted, whether he can demonstrate cause and prejudice to overcome any

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procedural bars, and whether equitable and/or statutory tolling, and claims of

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actual innocence apply.

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Although the Court understands that Phillips wants to proceed pro se, the

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procedural and substantive complexity of his habeas claims as well as the length

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of his sentence, reinforces the Court’s decision to exercise its discretion to appoint

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counsel here. Phillips’s proposed amended petition, alleging claims of ineffective

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assistance of counsel and unreasonable search and seizure, which spans more

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than 100 pages, demonstrates the complexity of his claims. ECF No. 32 at 23-

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137.

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Phillips is reminded that counsel is not appointed as “stand-by” or “stand-

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in” counsel and counsel is under no obligation to restate and reassert each and

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every allegation that a petitioner desires to pursue. Rather counsel is appointed

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to exercise their independent professional judgment about which allegations,

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claims, and arguments they believe collectively present the best chance of

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success. Cf. Jones v. Barnes, 463 U.S. 745 (1983) (counsel is vested with the

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authority to determine which are the strongest issues and which should be

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“winnow[ed] out”). The Court cautions Phillips that refusal to cooperate with

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counsel will not be deemed a conflict-of-interest worthy of removing counsel.

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McNeal v. Williams, 2023 WL 418643, at *1 (9th Cir. Jan. 26, 2023) (agreeing with

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the district court that the interests of justice are best served by having counsel

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represent the petitioner in complex matter and the district court did not abuse

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its discretion in denying petitioner’s motion to dismiss counsel because of

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petitioner’s disagreement with counsel’s decisions as to which claims to raise in

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his § 2254 petition).

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The Court encourages Phillips to communicate with counsel and work with

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them to develop his case as he has been granted a resource that many pro se

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litigants ask for but are denied. It remains in Phillips’s best interest to

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communicate with his counsel as this district’s local rules prevent the Court from

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entertaining pro se filings when a party is represented by counsel. Phillips may

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pursue this matter and communicate with the Court only through filings by

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counsel.

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Because the Court finds that, on the current record, that appointment of

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counsel is in the interests of justice, the motion to withdraw is denied. Phillips’s

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motions for stand-by counsel, motion to amend petition, and motions requesting

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action are denied.

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II.

Motions to Strike

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Respondents move to strike the pro se filings on the basis that petitioner

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cannot file papers in proper person while represented by counsel. ECF Nos. 19,

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20, 21, 24, 24-1, 25, and 26. “It is well established that district courts have

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inherent power to control their docket,” including the power to strike improperly

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filed items from the docket. Ready Transp. Inc. v. AAR Mfg. Inc., 627 F.3d 402,

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404 (9th Cir. 2010). Accordingly, the Court grants Respondents’ motions to

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strike.

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III.

Motions to Extend

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Despite filing a motion to withdraw, counsel for Phillips seeks an extension

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of time to file an amended petition. The Court finds that the request is made in

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good faith and not solely for the purpose of delay, and therefore, good cause exists

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to grant the motions. Phillips has until April 29, 2024, to file his amended

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petition.

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Conclusion

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It is therefore ordered that Petitioner Damien Phillips’s Motions for

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Appointment of Stand-In Counsel (ECF Nos. 15, 25), Motion to Amend Petition

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(ECF No. 24) and Motions to Request Action (ECF Nos. 29, 31, 33) are denied.

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It is further ordered that Phillips’s counsel’s Motion to Withdraw (ECF No.
28) is denied.

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It is further ordered that Respondents’ Motions to strike (ECF Nos. 22, 27)

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are granted. The Clerk of the Court is therefore ordered to strike ECF Nos. 19,

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20, 21, 24, 24-1, 25, and 26 from the docket.

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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.

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Dated this 25th day of March 2024.

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ANNE R. TRAUM
UNITED STATES DISTRICT JUDGE

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