DeCastro v. LeGrand et al

Filing 24

ORDER granting 9 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 petition (NEFs sent 4/28/2015); directing the FPD, within 30 days, to f ile a notice of appearance or indicate an inability to do so; denying without prejudice 11 Motion to Dismiss; granting nunc pro tunc 10 Motion for Extension of Time; denying as moot 19 and 20 Motions. Signed by Judge Robert C. Jones on 4/28/2015. (Copies have been distributed pursuant to the NEF - KR)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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CASTRO V. DECASTRO,
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Petitioner,

Case No. 3:14-cv-00529-RCJ-WGC

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vs.

ORDER

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ROBERT LEGRAND, et al.,
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Respondents.
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This habeas matter comes before the court on several motions filed by both parties. On February
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2, 2015, petitioner filed what he styled a (second) motion for appointment of counsel and a statement
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of additional claims (ECF #9). Without responding to that motion, respondents filed a motion to
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dismiss on February 17, 2015 (ECF #11). Petitioner thereafter filed a third motion for appointment of
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counsel as well as a motion to stay proceedings (ECF #19).1

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In petitioner’s so-called statement of additional claims he merely attached the state supreme
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court order affirming his judgment of conviction (ECF #9). He asserts that the state court order of
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affirmance shows seven additional claims that he is “unable to formulate for federal court review.” Id.
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He states in his most recent motion for appointment of counsel that a language barrier exists, inmate
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This filing was docketed as two motions at ECF #s 19 and 20. The court shall cite to the
motion as ECF #19.

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law clerks have assisted him with every filing, he is handicapped, and the only part of any filing that

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he has written himself is his signature (ECF #s 19, 23).

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Further, petitioner appears to misapprehend respondents’ pending motion to dismiss, that is, his

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subsequent motion for counsel indicates that he believes that his petition is already subject to dismissal

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as unexhausted and conclusory merely because respondents have filed a motion arguing as such (ECF

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#19). Based on petitioner’s filings subsequent to this court’s order serving his original petition and his

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sentence of twenty years to life, the court now concludes that appointment of counsel is appropriate.

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In light of the appointment of counsel, respondents’ motion to dismiss (ECF #11) shall be

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denied without prejudice as premature.
IT IS THEREFORE ORDERED that petitioner’s motion for appointment of counsel (ECF#9)
is GRANTED.
IT IS FURTHER ORDERED that the Federal Public Defender for the District of Nevada
(“FPD”) is appointed to represent petitioner.

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IT IS FURTHER ORDERED that the Clerk shall ELECTRONICALLY SERVE the FPD

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a copy of this order, together with a copy of the petition for writ of habeas corpus (ECF #4). The FPD

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shall have thirty (30) days from the date of entry of this order to file a notice of appearance or to indicate

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to the court its inability to represent petitioner in these proceedings.

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

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court will issue a scheduling order, which will, among other things, set a deadline for the filing of a first

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amended petition.

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IT IS FURTHER ORDERED that respondents’ motion to dismiss (ECF #11) is DENIED
without prejudice as premature.
IT IS FURTHER ORDERED that respondents’ motion for extension of time (ECF #10) is
GRANTED nunc pro tunc.

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IT IS FURTHER ORDERED that petitioner’s motion for appointment of counsel and to stay
the proceedings (ECF #s 19, 20) is DENIED as moot.

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Dated this 28thday of April, 2015.
Dated, this ___ day of April, 2015.
___________________________________
UNITED STATES DISTRICT JUDGE

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