Hernandez v. MCDANIEL et al
ORDER that the requests made by the petitioner in his pro se letter to the Court (ECF No. 162 ) are DENIED; Hernandez's letter will remain under seal; Clerk directed to serve a copy of Hernandez's letter on Hernandez's counsel (mailed to counsel on 4/13/2018); Clerk directed to not serve a copy of the letter on any other party. Signed by Judge Larry R. Hicks on 4/13/2018. (Copies have been distributed pursuant to the NEF - LH)
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
FERNANDO NAVARRO HERNANDEZ,
Case No. 3:09-cv-00545-LRH-WGC
TIMOTHY FILSON, et al.,
In this capital habeas corpus action, the petitioner, Fernando Navarro Hernandez,
is represented by appointed counsel, the Federal Public Defender for the District of
Nevada (FPD). On March 6, 2017, the FPD filed, on Hernandez’s behalf, a 230-page
fourth amended petition for writ of habeas corpus (ECF No. 147), including 29 claims,
many of which are comprised of multiple subparts. On March 5, 2018, the respondents
filed a motion to dismiss (ECF No. 161). Hernandez’s response to the motion to dismiss
is due on May 4, 2018. See Order entered February 20, 2015 (ECF No. 94) (60 days for
response to motion to dismiss).
On April 9, 2018, the Court received a letter from Hernandez, sent by Hernandez
himself, in which he complains to the Court that the FPD has not asserted certain claims
in his habeas petition. As that letter concerns the attorney-client relationship, and because
it may be construed to disclose communications between attorney and client, as well as
litigation strategy, the Clerk of the Court properly filed it under seal (ECF No. 162).
While a criminal defendant has the authority, as between the defendant and his
counsel, to make certain fundamental decisions regarding his case – for example, the
decision regarding how to plead, whether to waive a jury trial, whether to testify, and
whether to appeal -- there is no authority that a defendant, or a petitioner, in this case,
may control the legal claims asserted on his behalf by his counsel. See Jones v. Barnes,
463 U.S. 745, 751-54 (1983). Counsel “must be allowed to decide what issues are to be
pressed.” Id. at 751.
The Court denies the requests made by Hernandez in his letter to the Court.
Hernandez’s letter will remain sealed. The Court will direct the Clerk of the Court to serve
a copy of the letter on Hernandez’s counsel (but not on any other party). Counsel is
encouraged to consult with Hernandez regarding the letter.
IT IS THEREFORE ORDERED that the requests made by the petitioner in his pro
se letter to the Court (ECF No. 162) are DENIED.
IT IS FURTHER ORDERED that the Hernandez’s letter (ECF No. 162) will remain
under seal. The Clerk of the Court shall serve a copy of Hernandez’s letter (ECF No. 162)
on Hernandez’s counsel; the Clerk of the Court is not to serve a copy of the letter on any
DATED this 13th day of April, 2018.
LARRY R. HICKS,
UNITED STATES DISTRICT JUDGE
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