Hernandez v. MCDANIEL et al

Filing 281

ORDERED that Respondents' Motion to Strike (ECF No. 278 ) is GRANTED. Petitioner's Pro Se Motion for Appropriate Relief (ECF No. 277 ) will is stricken from the record. The Clerk of the Court is directed to update the docket as necessary to reflect this order. Signed by Judge Larry R. Hicks on 6/9/2021. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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FERNANDO NAVARRO HERNANDEZ,

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Petitioner,

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

v.

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ORDER

WILLIAM GITTERE, et al.,
Respondents.

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

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Hernandez, who is represented by appointed counsel, filed a Fifth Amended Petition for

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Writ of Habeas Corpus on October 11, 2019 (ECF No. 221). The fifth amended petition

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is Hernandez’s operative petition. Various of the claims in the fifth amended petition

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have been dismissed upon motions to dismiss by the respondents. See Order entered

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February 4, 2019 (ECF No. 184); Order entered September 10, 2020 (ECF No. 242).

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Respondents’ answer, responding to the claims remaining in the fifth amended petition,

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is due July 7, 2021. See Order entered June 7, 2021 (ECF No. 280).

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On April 19, 2021, Hernandez filed, pro se, a document entitled “Motion for

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Appropriate Relief, or, in the Alternative, Motion for New Trial” (ECF No. 277) (hereafter

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”Pro Se Motion for Appropriate Relief”). In that document, Hernandez:

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moves the Court to set aside the sentence of death and the judgment of
conviction and … order … the Nevada Department of Corrections (NDOC)
that any money deposited in his Trust 2 Account indefinitely, or, to order
the NDOC to put in hold any deduction that become derived from his
judgment of conviction indefinitely and to grant Hernandez a new trial, or,
in the alternative, to grant Hernandez motion for appropriate relief (MAR)
on all the charges in the [Complaint] filed date 10/14/1999 and in the
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Information filed date 11/12/1999, on the ground that Hernandez have
obtained Real Evidence in the form of photographs and in the form that
over two (2) decade later the prosecution still withheld favorable evidence
from Hernandez that could have proven Hernandez [innocent] or at least
led to a more favorable result ….
Pro Se Motion for Appropriate Relief (ECF No. 277), pp. 1–2.
On April 30, 2021, Respondents filed a Motion to Strike (ECF No. 278),

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requesting that the Court strike the Pro Se Motion for Appropriate Relief (ECF No. 277).

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Respondents cite the Court’s Local Rule LR IA 11-6(a), which states:

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Unless the court orders otherwise, a party who has appeared by attorney
cannot while so represented appear or act in the case. This means that
once an attorney makes an appearance on behalf of a party, that party
may not personally file a document with the court; all filings must
thereafter be made by the attorney. An attorney who has appeared for a
party must be recognized by the court and all the parties as having control
of the client’s case, however, the court may hear a party in open court
even though the party is represented by an attorney.

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LR IA 11-6(a). Under the circumstances here, in view of the nature of Hernandez’s

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Pro Se Motion for Appropriate Relief, the Court will grant Respondents’ motion and

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order the Pro Se Motion for Appropriate Relief stricken from the record under

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LR 1A 11-6(a).

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IT IS THEREFORE ORDERED that Respondents’ Motion to Strike (ECF No.

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278) is GRANTED. Petitioner’s Pro Se Motion for Appropriate Relief (ECF No. 277) will

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be stricken from the record. The Clerk of the Court is directed to update the docket as

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necessary to reflect this order.

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DATED this 9th day of June, 2021.

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LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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