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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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 *** 9 FERNANDO NAVARRO HERNANDEZ, 10 Petitioner, ORDER v. 11 12 Case No. 3:09-cv-00545-LRH-WGC TIMOTHY FILSON, et al., 13 Respondents. 14 15 In this capital habeas corpus action, the petitioner, Fernando Navarro Hernandez, 16 is represented by appointed counsel, the Federal Public Defender for the District of 17 Nevada (FPD). On March 6, 2017, the FPD filed, on Hernandez’s behalf, a 230-page 18 fourth amended petition for writ of habeas corpus (ECF No. 147), including 29 claims, 19 many of which are comprised of multiple subparts. On March 5, 2018, the respondents 20 filed a motion to dismiss (ECF No. 161). Hernandez’s response to the motion to dismiss 21 is due on May 4, 2018. See Order entered February 20, 2015 (ECF No. 94) (60 days for 22 response to motion to dismiss). 23 On April 9, 2018, the Court received a letter from Hernandez, sent by Hernandez 24 himself, in which he complains to the Court that the FPD has not asserted certain claims 25 in his habeas petition. As that letter concerns the attorney-client relationship, and because 26 it may be construed to disclose communications between attorney and client, as well as 27 litigation strategy, the Clerk of the Court properly filed it under seal (ECF No. 162). 28 /// 1 1 While a criminal defendant has the authority, as between the defendant and his 2 counsel, to make certain fundamental decisions regarding his case – for example, the 3 decision regarding how to plead, whether to waive a jury trial, whether to testify, and 4 whether to appeal -- there is no authority that a defendant, or a petitioner, in this case, 5 may control the legal claims asserted on his behalf by his counsel. See Jones v. Barnes, 6 463 U.S. 745, 751-54 (1983). Counsel “must be allowed to decide what issues are to be 7 pressed.” Id. at 751. 8 The Court denies the requests made by Hernandez in his letter to the Court. 9 Hernandez’s letter will remain sealed. The Court will direct the Clerk of the Court to serve 10 a copy of the letter on Hernandez’s counsel (but not on any other party). Counsel is 11 encouraged to consult with Hernandez regarding the letter. 12 13 IT IS THEREFORE ORDERED that the requests made by the petitioner in his pro se letter to the Court (ECF No. 162) are DENIED. 14 IT IS FURTHER ORDERED that the Hernandez’s letter (ECF No. 162) will remain 15 under seal. The Clerk of the Court shall serve a copy of Hernandez’s letter (ECF No. 162) 16 on Hernandez’s counsel; the Clerk of the Court is not to serve a copy of the letter on any 17 other party. 18 19 DATED this 13th day of April, 2018. 20 ______________________________ LARRY R. HICKS, UNITED STATES DISTRICT JUDGE 21 22 23 24 25 26 27 28 2

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