O'Keefe v. LeGrand

Filing 49

ORDER granting Petitioner's ECF No. 39 Motion to Withdraw Counsel and Proceed Pro Se; permitting Mark Eibert to withdraw effective immediately; giving Petitioner 90 days to file pro se amended petition; denying Peti tioner's ECF Nos. 33 Motion for Leave to File Motions, 36 Motion for Leave of Court to File Petition for Writ of Mandamus, and 38 Motion for Leave of Court; granting Petitioner's ECF Nos. 42 Counseled Motion for Ruling on Mot ion to Withdraw and 34 and 44 Counseled Motions for Extension of Time; granting Respondents' ECF No. 46 Motion to Strike Fugitive Supplemental Petition; directing Clerk to strike ECF No. 45 Supplemental Petition. Signed by Judge Robert C. Jones on 2/1/2017. (Copies have been distributed pursuant to the NEF - KR)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 *** 9 BRIAN KERRY O’KEEFE, 10 Case No. 3:14-cv-00477-RCJ-VPC Petitioner, ORDER v. 11 ROBERT LEGRAND, et al., 12 Respondents. 13 14 As set forth in this court’s order dated August 23, 2016, the Ninth Circuit Court of 15 Appeals issued its mandate remanding this case for further proceedings on August 19, 16 2016 (ECF No. 32). 17 Petitioner Brian Kerry O’Keefe currently is represented by CJA counsel. Now 18 before the court is O’Keefe’s pro se motion to withdraw counsel (ECF No. 39). O’Keefe 19 indicates that the attorney-client relationship has completely broken down. Counsel for 20 O’Keefe filed a response in which he details the work he has undertaken in 21 representation of O’Keefe, but he also indicates that O’Keefe does not trust him and he 22 agrees that the attorney-client relationship has completely broken down. Good cause 23 appearing, the motion to withdraw counsel and proceed pro se (ECF No. 39) is granted. 24 O’Keefe filed several other motions pro se, despite the fact that he is represented 25 by counsel. These fugitive filings are not properly before the court and shall be denied. 26 The court notes that in one motion—a motion for leave to file a petition for writ of 27 mandamus—O’Keefe claims that Nevada Department of Corrections personnel 28 mishandled his legal mail and that his counsel never received two boxes of legal 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 materials that O’Keefe mailed (ECF No. 36). The court notes that petitioner has an operative petition on file (see ECF No. 14). Therefore, while he may choose to file an amended petition, he is not required to do so. Moreover, Habeas Rule 5 provides that respondents shall provide the relevant state-court records with their response to the petition. It is, therefore, unclear what further materials O’Keefe might need. IT IS THEREFORE ORDERED that petitioner’s motion to withdraw counsel and proceed pro se (ECF No. 39) is GRANTED. IT IS FURTHER ORDERED that Mark Eibert is permitted to withdraw as counsel for the petitioner, effective immediately. IT IS FURTHER ORDERED that, within ninety (90) days of the date of this order, petitioner shall file his pro se amended petition or a notice that he intends to proceed with the petition on file at ECF No. 14. The provisions of this court’s scheduling order dated August 23, 2016 (ECF No. 32), otherwise remain in effect, with the due dates for briefing to run from the date that petitioner files his amended petition or files a notice that he shall proceed on the current petition at ECF No. 14. IT IS FURTHER ORDERED that petitioner’s motion for leave to file motions (ECF No. 33), motion for leave of court to file petition for writ of mandamus (ECF No. 36), and motion for leave of court (ECF No. 38) are all DENIED. IT IS FURTHER ORDERED that petitioner’s counseled motion for ruling on motion to withdraw (ECF No. 42) and counseled motions for extension of time (ECF Nos. 34 and 44) are all GRANTED. 22 23 24 25 26 27 28 2 1 2 3 4 IT IS FURTHER ORDERED that respondents’ motion to strike fugitive supplemental petition (ECF No. 46) is GRANTED. The Clerk SHALL STRIKE the supplemental petition at ECF No. 45. Petitioner may now, going forward, proceed in pro se as described in this order. 5 6 DATED: 1 February 2017. 7 8 ROBERT C. JONES 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

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