Hernandez v. MCDANIEL et al

Filing 163

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)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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FERNANDO NAVARRO HERNANDEZ,

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Petitioner, ORDER
v.

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Case No. 3:09-cv-00545-LRH-WGC

TIMOTHY FILSON, et al.,

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Respondents.

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In this capital habeas corpus action, the petitioner, Fernando Navarro Hernandez,

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is represented by appointed counsel, the Federal Public Defender for the District of

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Nevada (FPD). On March 6, 2017, the FPD filed, on Hernandez’s behalf, a 230-page

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fourth amended petition for writ of habeas corpus (ECF No. 147), including 29 claims,

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many of which are comprised of multiple subparts. On March 5, 2018, the respondents

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filed a motion to dismiss (ECF No. 161). Hernandez’s response to the motion to dismiss

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is due on May 4, 2018. See Order entered February 20, 2015 (ECF No. 94) (60 days for

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response to motion to dismiss).

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On April 9, 2018, the Court received a letter from Hernandez, sent by Hernandez

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himself, in which he complains to the Court that the FPD has not asserted certain claims

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in his habeas petition. As that letter concerns the attorney-client relationship, and because

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it may be construed to disclose communications between attorney and client, as well as

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litigation strategy, the Clerk of the Court properly filed it under seal (ECF No. 162).

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While a criminal defendant has the authority, as between the defendant and his

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counsel, to make certain fundamental decisions regarding his case – for example, the

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decision regarding how to plead, whether to waive a jury trial, whether to testify, and

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whether to appeal -- there is no authority that a defendant, or a petitioner, in this case,

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may control the legal claims asserted on his behalf by his counsel. See Jones v. Barnes,

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463 U.S. 745, 751-54 (1983). Counsel “must be allowed to decide what issues are to be

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pressed.” Id. at 751.

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The Court denies the requests made by Hernandez in his letter to the Court.

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Hernandez’s letter will remain sealed. The Court will direct the Clerk of the Court to serve

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a copy of the letter on Hernandez’s counsel (but not on any other party). Counsel is

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encouraged to consult with Hernandez regarding the letter.

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IT IS THEREFORE ORDERED that the requests made by the petitioner in his pro
se letter to the Court (ECF No. 162) are DENIED.

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IT IS FURTHER ORDERED that the Hernandez’s letter (ECF No. 162) will remain

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under seal. The Clerk of the Court shall serve a copy of Hernandez’s letter (ECF No. 162)

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on Hernandez’s counsel; the Clerk of the Court is not to serve a copy of the letter on any

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other party.

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DATED this 13th day of April, 2018.

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______________________________
LARRY R. HICKS,
UNITED STATES DISTRICT JUDGE

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