Myers v. Baker et al

Filing 30

ORDER denying 15 Motion to Dismiss; appointing FPD as counsel for petitioner; directing clerk to serve copy of this order on FPD and CJA Coordinator (served via NEF 9/24/15); directing clerk to serve copy of 7 petition on FPD (served via NEF 9/24/15); and directing FPD to advise court re representation within 30 days. Signed by Judge Miranda M. Du on 9/24/15. (Copies have been distributed pursuant to the NEF - JC)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

DISTRICT OF NEVADA

8

***

9

JOSHUA CARY MYERS,

10
11
12
13
14
15

Case No. 3:14-cv-00082-MMD-VPC
Petitioner,

ORDER

v.
RENEE BAKER, et al.,
Respondents.
This is a pro se petition for a writ of habeas corpus filed pursuant to 28 U.S.C. §
2254, by a Nevada state prisoner.

16

Pursuant to 18 U.S.C. § 3006A(2)(B), the district court has discretion to appoint

17

counsel when it determines that the “interests of justice” require representation in a

18

habeas corpus case. The decision to appoint counsel is within the Court’s discretion.

19

Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986), cert. denied, 481 U.S. 1023

20

(1987); Bashor v. Risley, 730 F.2d 1228, 1234 (9th Cir.), cert. denied, 469 U.S. 838

21

(1984). Counsel must be appointed if the complexities of the case are such that denial

22

of counsel would amount to a denial of due process. See Chaney, 801 F.2d at 1196;

23

see also Hawkins v. Bennett, 423 F.2d 948 (8th Cir. 1970).

24

Previously, this Court denied petitioner’s requests for the appointment of counsel.

25

(Dkt. nos. 6 & 26). In the underlying state criminal case, petitioner was convicted of first

26

degree murder and was sentenced to imprisonment for life without the possibility of

27

parole. Upon closer review of the pro se petition and other filings submitted in this case,

28

it is evident that petitioner lacks the ability to formulate legal arguments necessary to

1

litigate this relatively complex federal habeas action. For example, it is evident that

2

petitioner seeks to assert the same substantive claims as were made in his state court

3

direct appeal and post-conviction proceedings. However, in drafting the pro se federal

4

habeas petition, petitioner identifies each of his grounds as ineffective assistance of

5

counsel claims, while within those same grounds, he makes the substantive claims that

6

were previously raised in state court. (Compare dkt. no. 7 with Exhibits 42 & 63.) To the

7

extent that counsel is appointed and counsel then files an amended petition, such

8

amendment would not be futile, as the substantive claims will likely relate back to the

9

pro se petition’s ineffective assistance of counsel claims. See, e.g., Ha Van Nguyen v.

10

Curry, 736 F.3d 1287, 1296-97 (9th Cir. 2013). The Court finds that the interests of

11

justice require the appointment of counsel in this case.

12

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

13

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

14

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

15

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

16

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

17

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

18

withdraw.

19
20
21
22

It is therefore ordered that respondents’ motion to dismiss (dkt. no. 15) is denied
without prejudice.
It is further ordered that the Federal Public Defender is appointed to represent
petitioner in this proceeding.

23

It is further ordered that the Clerk of Court shall electronically serve the Federal

24

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

25

copy of the original pro se petition for writ of habeas corpus (dkt. no. 7). The FPD shall

26

have thirty (30) days from the date of entry of this order to undertake direct

27

representation of petitioner or to indicate to the Court its inability to represent petitioner

28

in these proceedings.
2

1
2

It is further ordered that the Clerk of Court shall send a copy of this order to the
CJA Coordinator.

3

It is further ordered that, after counsel has appeared for petitioner in this case,

4

the Court will issue a scheduling order, which will, among other things, set a deadline

5

for the filing of a first amended petition.

6

DATED THIS 24th day of September 2015.

7
8

MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3