Gourley v. Baca et al
ORDER - Clerk shall file the motion for appointment of counsel. The motion for counsel is granted. FPD is provisionally appointed as counsel and will have 30 days to undertake direct representation of petitioner or to indicate to the C ourt the offices inability to do so. Respondents' counsel must enter a notice of appearance by 11/1/2017, but no further response is required until further order of the Court. Clerk will send a copy of this order to the pro se petitioner, th e AG, the FPD, and the CJA Coordinator. (Copy mailed to P; E-service to AG, FPD, CJA Coord. on 10/11/2017.) The Clerk further will provide copies of all prior filings herein to both the AG and the FPD. (Clerk subsequently re-generated NEFs 1-9 to AG and FPD on 10/11/2017.) Signed by Judge Miranda M. Du on 10/11/2017. (Copies have been distributed pursuant to the NEF - DRM)
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
FRANK P. GOURLEY,
Case No. 3:16-cv-00029-MMD-VPC
ISIDRO BACA, et al.,
This habeas matter comes before the Court for sua sponte reconsideration of the
denial of petitioner’s motion for appointment of counsel (ECF No. 1-2) and further for initial
review of the petition under Rule 4 of the Rules Governing Section 2254 Cases.
On sua sponte reconsideration, the Court finds that grant of the motion for
appointment of counsel would be in the interests of justice in order to assure that
petitioner’s ability to litigate, inter alia, the question of whether his alleged mental health
issues contributed to a potentially untimely federal filing is not impaired by (a) any such
mental health issues, and (b) an inability to access his prison medical records. (See ECF
No. 1-1 at 3 & 5; ECF No. 1-2 at 2-4. See also No. 3:17-cv-00379-MMD-WGC, ECF No.
1-2 at 2-3, & ECF No. 1-3.)
It is therefore ordered that the Clerk of Court file the motion for appointment of
counsel, that the motion is granted, and that the Clerk reflect the grant of the motion along
with the docket entry for the motion in a manner consistent with the Clerk’s current
practice. The counsel appointed will represent petitioner in all federal proceedings related
to this matter, including any appeals or certiorari proceedings, unless allowed to withdraw.
It is further ordered that the Federal Public Defender will be provisionally appointed
as counsel and will have thirty (30) days to undertake direct representation of petitioner
or to indicate to the Court the office’s inability to represent petitioner in these proceedings.
If the Federal Public Defender is unable to represent petitioner, the Court then will appoint
alternate counsel. A deadline for the filing of an amended petition and/or seeking other
relief will be set after counsel has entered an appearance. The Court anticipates setting
the deadline for approximately one hundred twenty (120) days from entry of the formal
order of appointment. Any deadline established and/or any extension thereof will not
signify any implied finding of a basis for tolling during the time period established.
Petitioner at all times remains responsible for calculating the running of the federal
limitation period and timely presenting claims. That is, by setting a deadline to amend the
petition and/or by granting any extension thereof, the Court makes no finding or
representation that the petition, any amendments thereto, and/or any claims contained
therein are not subject to dismissal as untimely. See Sossa v. Diaz, 729 F.3d 1225, 1235
(9th Cir. 2013).
It is further ordered that, with the state attorney general previously having been
served electronically, respondents' counsel must enter a notice of appearance within
twenty-one (21) days of entry of this order, but no further response will be required from
respondents until further order of the Court.
The Clerk accordingly will send a copy of this order to the pro se petitioner, the
Nevada Attorney General, the Federal Public Defender, and the CJA Coordinator for this
division. The Clerk further will provide copies of all prior filings herein to both the Attorney
General (to the extent not previously copied) and the Federal Public Defender in a manner
consistent with the Clerk’s current practice, such as regeneration of notices of electronic
DATED THIS 11th day of October 2017.
MIRANDA M. DU
UNITED STATES DISTRICT JUDGE
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