Beltran v. Baker et al

Filing 10

ORDER - Petitioner's 9 Response to Order to Show Cause, which the Court construes as a renewed request for counsel, is GRANTED. The FPD is appointed to represent petitioner. The Clerk shall electronically serve the FPD a copy of this Order, the 7 petition and petitioner's 9 response (service effected 7/16/2013). The FPD shall have 30 days from the date of entry of this Order to file a notice of appearance or indicate its inability to represent petitioner in these proceedings. After counsel has appeared for petitioner, petitioner will have 60 days to show why the petition is not untimely or is entitled to tolling of the statute of limitations. Respondents shall have 28 days to respond and petitioner shall have 14 days to reply. Signed by Judge Miranda M. Du on 07/16/2013. (Copies have been distributed pursuant to the NEF - KR)

1
2
3
4

UNITED STATES DISTRICT COURT

5

DISTRICT OF NEVADA

6

***

7
8
9
10

RECARDO BELTRAN,

Case No. 3:13-cv-00048-MMD-WGC
Petitioner,

ORDER

v.
RENEE BAKER, et al.,
Respondents.

11
12

Ricardo Beltran submitted (1) a petition for a writ of habeas corpus pursuant to

13

28 U.S.C. § 2254 (dkt. no. 1-1), and (2) a motion for appointment of counsel (dkt. no. 2-

14

1). The Court denied the motion for counsel and directed petitioner to show why his

15

petition should not be dismissed as untimely. (Dkt. no. 6.) Petitioner has filed his

16

response to the Court’s order in Spanish. (Dkt. no. 8.) Based on this response, the

17

Court will revisit petitioner’s request for counsel, which was denied because it appeared

18

that petitioner had the competent assistance of another inmate.

19

The preliminary issue is whether or not the petition has been filed within the one-

20

year limitations period imposed by the AEDPA, 28 U.S.C. § 2244(d), or whether

21

petitioner is entitled to tolling of that period. In Mendoza v. Carey, the Ninth Circuit

22

Court of Appeals remanded the case to the district court to allow the petitioner an

23

opportunity to develop facts to substantiate his claim that his language barrier presented

24

an extraordinary circumstance that would warrant equitable tolling of the statute of

25

limitations. 449 F.3d 1065, 1069 (9th Cir. 2006.)

26

The logic of Mendoza suggests that it is appropriate to allow petitioner the

27

assistance of Spanish-speaking counsel or counsel with a translator in order to explain

28

whether equitable tolling applies here. If petitioner argues that his petition is

1

untimely because of his inability to speak or understand English, Mendoza clearly

2

requires that petitioner “must, at a minimum, demonstrate that during the running of the

3

AEDPA time limitation, he was unable, despite diligent efforts, to procure either legal

4

materials in his own language or translation assistance from an inmate, library

5

personnel, or other source.” Id. at 1070.

6

Therefore, the Federal Public Defender for the District of Nevada (FPD) shall be

7

appointed to represent petitioner. If the FPD is unable to represent petitioner, due to a

8

conflict of interest or other reason, then alternate counsel for petitioner shall be located,

9

and the Court will enter a separate order appointing such alternate counsel. In either

10

case, counsel will represent petitioner in all future federal proceedings relating to this

11

matter (including subsequent actions) and appeals therefrom, unless allowed to

12

withdraw.

13

IT IS THEREFORE ORDERED that petitioner’s Response to Order to Show

14

Cause (dkt. no. 9), which the Court construes as a renewed request for counsel, is

15

GRANTED. The Federal Public Defender is appointed to represent petitioner.

16

IT IS FURTHER ORDERED that the Clerk shall electronically serve the Federal

17

Public Defender for the District of Nevada (FPD) a copy of this Order, together with a

18

copy of the petition for writ of habeas corpus (dkt. no. 7) and copy of petitioner’s

19

Response (dkt. no. 9). The FPD shall have thirty (30) days from the date of entry of this

20

Order to file a notice of appearance or to indicate to the Court its inability to represent

21

petitioner in these proceedings.

22

IT IS FURTHER ORDERED that, after counsel has appeared for petitioner in this

23

case, petitioner will have sixty (60) days to show why the petition is not untimely or is

24

entitled to tolling of the statute of limitations. Thereafter, respondents shall have twenty-

25

eight (28) days to respond and petitioner shall have fourteen (14) days to reply.

26

DATED THIS 16th day of July 2013.

27
28

MIRANDA M. DU
UNITED STATES DISTRICT JUDGE
2