Smith v. McDaniel et al

Filing 72

ORDER denying 71 Ex Parte Motion. Signed by Judge Robert C. Jones on 5/11/15. (Copies have been distributed pursuant to the NEF - JC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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ROBERT ANTHONY SMITH,

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Petitioner,

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vs.

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3:08-cv-00335-RCJ-WGC

RENEE BAKER, et al.,

ORDER
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Respondents.
_____________________________/

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In this habeas corpus action, the petitioner, Robert Anthony Smith, has filed a pro se

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document (ECF No. 71) entitled “Ex Parte Motion,” in which he expresses concern about his

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attorney’s communication with him and with what he perceives to be delay in her filing of a second

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amended petition, and in which he asks that his former counsel be re-appointed to his case. The

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court will deny Smith’s pro se motion.

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Smith initiated this action in 2008. The federal public defender (FPD) was appointed to

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represent Smith, and the FPD filed a first amended petition on his behalf on April 20, 2009. The

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case was then stayed from June 9, 2009, to March 18, 2011, upon a stipulation of the parties,

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pending completion of state-court litigation. After the state-court litigation was completed and the

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stay of this case lifted, the respondents filed a motion to dismiss, and that motion was resolved,

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with the dismissal of three claims from the first amended petition, on November 4, 2011. On

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February 3, 2012, respondents filed an answer, and on May 17, 2012, Smith filed a reply.

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However, Smith’s counsel, the FPD, then notified the court that they had identified a conflict

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of interest with respect to their representation of Smith. The FPD filed a motion to withdraw, and

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the court granted that motion on August 26, 2014, discharging the FPD from their representation of

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Smith.

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On September 9, 2014, the court appointed Mary Lou Wilson as counsel for Smith. In the

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order appointing Wilson (ECF No. 66), the court granted Smith 60 days to file a second amended

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habeas petition. Subsequently, the court twice granted motions for extension of the deadline for the

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second amended petition (ECF Nos. 68, 70), extending the due date to June 12, 2015.

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This is a relatively complex habeas corpus action, with a long procedural history. It is not

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surprising that Smith’s new counsel would need substantial time to become familiar with the case,

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and formulate and draft a second amended petition. There is no indication that Wilson has neglected

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Smith’s case in any manner. The court will not reconsider the discharge of the FPD or the

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appointment of Wilson. See Order entered May 27, 2014 (ECF No. 63); Order entered August 26,

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2014 (ECF No. 65).

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However, given the amount of time that counsel has now had, since her September 9, 2014,

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appointment, the court will not look favorably upon any motion seeking a further extension of the

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June 12, 2015, deadline.

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IT IS THEREFORE ORDERED that petitioner’s “Ex Parte Motion” (ECF No. 71) is
DENIED.

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Dated this 11th day of May, 2015.

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UNITED STATES DISTRICT JUDGE

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