O'Neill v. Baker et al

Filing 3

ORDERED that the # 1 Application to proceed IFP is GRANTED such that P will not be required to pay the $5.00 filing fee. FURTHER ORD that the the Clerk of Court shall file the petition and accompanying motions. FURTHER ORD the motion for coun sel is GRANTED and that the Clerk shall reflect in docketing the motion that the motion is granted by this order. The counsel appointed will represent P in all proceedings related to this matter, including any appeals or certiorari proceedings, unles s allowed to withdraw. FURTHER ORD the FPD shall be provisionally appointed as counsel and shall have 30 days to undertake direct representation of P or to indicate an inability to do so. ( E-service of order to FPD on 12/21/2011.) FURTHER ORD the AG shall be added as counsel for Rs and that informal electronic service shall be made upon her office. Rs' counsel shall enter a notice of appearance by 1/11/2012. ( E-service of order to AG on 12/21/2011.) FURTHER ORD The Clerk accordingly sha ll send a copy of this order (along with, in a manner consistent with the Clerks current practice, copies of the papers submitted by petitioner) to the pro se P, the AG, the FPD, and the CJA Coordinator. ( Paper copies Order distributed to P, AG, FPD, and CJA Coord. on 12/21/2011. ) Signed by Judge Larry R. Hicks on 12/20/2011. (Copies have been distributed pursuant to the NEF - DRM) Modified on 12/21/2011 to reflect paper copy of petition mailed to P, AG, and FPD only on 12/21/2011 (DRM).

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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CHRISTOPHER O’NEILL,
Petitioner,

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3:11-cv-00901-LRH-VPC

vs.
ORDER

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RENEE BAKER, et al.,
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Respondents.
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This habeas matter under 28 U.S.C. § 2254 comes before the Court on petitioner’s application

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(#1) to proceed in forma pauperis, his motion (#1-1) for leave to file a petition in excess of the allotted

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amount, and his motion (#1-3) for appointment of counsel. The Court finds that petitioner does not

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have sufficient funds currently on hand to pay the filing fee, and the pauper application therefore will

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be granted. The motion for leave to file a longer petition also will be granted.

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Following review, the Court will grant the motion for appointment of counsel, taking into

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account the lengthy sentencing structure of concurrent life sentences with the possibility of parole after

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ten years, the number and complexity of the claims and potential procedural issues, and the potential

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that substantial time may remain in the federal limitation period for petitioner to present claims through

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a counseled amended petition.1

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The Court makes no conclusive determination as to the federal limitation period. Petitioner and his counsel at
all times remain responsible for calculating the federal limitation period and timely filing claims. Neither any schedule
established herein nor any extension granted shall operate, in and of itself, to toll the running of the federal limitation
period.

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Petitioner should note the following, however.

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Federal habeas counsel is not being appointed to act as a mere scrivener to restate and reassert

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each and every allegation and claim presented by petitioner pro se. The Court is not appointing counsel

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to pursue claims or arguments that, in counsel’s independent professional judgment, have no arguable

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merit in a federal habeas corpus proceeding.

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Petitioner thus should not assume that the Court will automatically appoint replacement counsel

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in the event that petitioner and appointed counsel do not agree on what claims or arguments should be

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presented. Appointed counsel’s task is to pursue claims that counsel, in his or her own independent

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professional judgment, believes that a court may find meritorious, not to present claims that petitioner,

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who is not an attorney, believes to be meritorious. Counsel is under absolutely no obligation to “follow

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petitioner’s instructions” as to what claims or arguments to present and how to present them.

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Accordingly, presenting the Court with an alleged conflict between counsel and petitioner based upon

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a disagreement over how to pursue this case will not necessarily lead to an appointment of replacement

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counsel. Subject to the circumstances presented at the time, the Court potentially instead could find that

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the interests of justice no longer warrant the continued appointment of any counsel, based upon the

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premise that if petitioner has such an allegedly irreconcilable conflict with one competent attorney, the

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situation is not likely to be different with another competent attorney. Counsel, again, is not being

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appointed to pursue claims that petitioner believes to be meritorious but, instead, is being appointed to

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pursue claims that, in counsel’s independent professional judgment, have arguable merit. Competent

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federal habeas counsel potentially may not pursue all of the claims, allegations, and arguments in the

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current pleading.

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Moreover, the Court will not entertain pro se filings from petitioner when he is represented by

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appointed counsel. Following the appointment of counsel, petitioner may pursue this matter only

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through filings by counsel.

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IT THEREFORE IS ORDERED that the application (#1) to proceed in forma pauperis is
GRANTED such that petitioner will not be required to pay the $5.00 filing fee.
IT FURTHER IS ORDERED that the the Clerk of Court shall file the petition and
accompanying motions.
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IT FURTHER IS ORDERED that the motion for leave to file a petition in excess of the allotted

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amount is GRANTED and that the Clerk shall reflect in docketing the motion that the motion is granted

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by this order, in a manner consistent with the Clerk’s current practice.

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IT FURTHER IS ORDERED that the motion for counsel is GRANTED and that the Clerk shall

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reflect in docketing the motion that the motion is granted by this order, in a manner consistent with the

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Clerk’s current practice. The counsel appointed will represent petitioner in all proceedings related to

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this matter, including any appeals or certiorari proceedings, unless allowed to withdraw.

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IT FURTHER IS ORDERED that the Federal Public Defender shall be provisionally appointed

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as counsel and shall have thirty (30) days to undertake direct representation of petitioner or to indicate

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an inability to do so. If the Federal Public Defender is unable to represent petitioner, the Court then

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shall appoint alternate counsel. A deadline for the filing of an amended petition will be set after counsel

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has entered an appearance. The Court anticipates setting the deadline for one hundred fifty (150) days

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from entry of the scheduling order based upon the current record.

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IT FURTHER IS ORDERED that the Nevada Attorney General shall be added as counsel for

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respondents and that informal electronic service shall be made upon her office in a manner consistent

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with the Clerk’s current practice. Respondents' counsel shall enter a notice of appearance within

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twenty-one (21) days of entry of this order, but no further response shall be required from respondents

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until further order of this Court.

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The Clerk accordingly shall send a copy of this order (along with, in a manner consistent with

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the Clerk’s current practice, copies of the papers submitted by petitioner) to the pro se petitioner, the

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Attorney General, the Federal Public Defender, and the CJA Coordinator for this Division.

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DATED this 20th day of December, 2011.

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___________________________________
LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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