Smith v. Baca et al

Filing 5

ORDER granting 1 -4 Motion for Appointment of Counsel, appointing FPD to represent Petitioner; directing Clerk to e-serve FPD a copy of this order and a copy of the 1 petition and its attachments (NEFs sent 4/29/2015); directing the FPD, within 30 days, to undertake direct representation of Petitioner or indicate an inability to do so. Signed by Judge Miranda M. Du on 4/29/2015. (Copies have been distributed pursuant to the NEF - KR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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JACOB SMITH,

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Case No. 3:14-cv-00512-MMD-VPC
Petitioner,

ORDER

v.
ISIDRO BACA, et al.,
Respondents.

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This is a pro se petition for a writ of habeas corpus filed pursuant to 28 U.S.C. §

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2254, by a Nevada state prisoner. Along with the petition, petitioner has submitted a

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motion for the appointment of counsel. (Dkt. no. 1-4.) Pursuant to 18 U.S.C. §

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3006A(2)(B), the district court has discretion to appoint counsel when it determines that

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the “interests of justice” require representation in a habeas corpus case. Petitioner has

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no constitutional right to appointed counsel in a federal habeas corpus proceeding.

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Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); Bonin v. Vasquez, 999 F.2d 425, 428

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(9th Cir. 1993). The decision to appoint counsel is within the Court’s discretion. Chaney

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v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986), cert. denied, 481 U.S. 1023 (1987);

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Bashor v. Risley, 730 F.2d 1228, 1234 (9th Cir.), cert. denied, 469 U.S. 838 (1984).

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However, counsel must be appointed if the complexities of the case are such that denial

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

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

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The federal habeas petition submitted in this action includes many claims, the

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contents of which suggest that it may be a relatively complex action. In the underlying

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state criminal case, petitioner was convicted of first degree murder and was sentenced

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to imprisonment for life without the possibility of parole. Moreover, the federal petition

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was drafted not by petitioner, but by an inmate law clerk, suggesting that petitioner lacks

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the ability to formulate legal arguments necessary to litigate this federal habeas action.

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The Court grants petitioner’s motion for the appointment of counsel.

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

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

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

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

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

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

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withdraw.

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It is therefore ordered that petitioner’s motion for the appointment of counsel (dkt.
no. 1-4) is granted. The Federal Public Defender is appointed to represent petitioner.

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

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

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copy of the petition for writ of habeas corpus and its attachments (dkt. no. 1). The FPD

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

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

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in these proceedings.

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

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

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for the filing of a first amended petition.

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DATED THIS 29th day of April 2015.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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