Gourley v. Baca et al

Filing 10

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)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 DISTRICT OF NEVADA 7 *** 8 FRANK P. GOURLEY, 9 10 11 Case No. 3:16-cv-00029-MMD-VPC Petitioner, ORDER v. ISIDRO BACA, et al., Respondents. 12 13 14 This habeas matter comes before the Court for sua sponte reconsideration of the 15 denial of petitioner’s motion for appointment of counsel (ECF No. 1-2) and further for initial 16 review of the petition under Rule 4 of the Rules Governing Section 2254 Cases. 17 On sua sponte reconsideration, the Court finds that grant of the motion for 18 appointment of counsel would be in the interests of justice in order to assure that 19 petitioner’s ability to litigate, inter alia, the question of whether his alleged mental health 20 issues contributed to a potentially untimely federal filing is not impaired by (a) any such 21 mental health issues, and (b) an inability to access his prison medical records. (See ECF 22 No. 1-1 at 3 & 5; ECF No. 1-2 at 2-4. See also No. 3:17-cv-00379-MMD-WGC, ECF No. 23 1-2 at 2-3, & ECF No. 1-3.) 24 It is therefore ordered that the Clerk of Court file the motion for appointment of 25 counsel, that the motion is granted, and that the Clerk reflect the grant of the motion along 26 with the docket entry for the motion in a manner consistent with the Clerk’s current 27 practice. The counsel appointed will represent petitioner in all federal proceedings related 28 to this matter, including any appeals or certiorari proceedings, unless allowed to withdraw. 1 It is further ordered that the Federal Public Defender will be provisionally appointed 2 as counsel and will have thirty (30) days to undertake direct representation of petitioner 3 or to indicate to the Court the office’s inability to represent petitioner in these proceedings. 4 If the Federal Public Defender is unable to represent petitioner, the Court then will appoint 5 alternate counsel. A deadline for the filing of an amended petition and/or seeking other 6 relief will be set after counsel has entered an appearance. The Court anticipates setting 7 the deadline for approximately one hundred twenty (120) days from entry of the formal 8 order of appointment. Any deadline established and/or any extension thereof will not 9 signify any implied finding of a basis for tolling during the time period established. 10 Petitioner at all times remains responsible for calculating the running of the federal 11 limitation period and timely presenting claims. That is, by setting a deadline to amend the 12 petition and/or by granting any extension thereof, the Court makes no finding or 13 representation that the petition, any amendments thereto, and/or any claims contained 14 therein are not subject to dismissal as untimely. See Sossa v. Diaz, 729 F.3d 1225, 1235 15 (9th Cir. 2013). 16 It is further ordered that, with the state attorney general previously having been 17 served electronically, respondents' counsel must enter a notice of appearance within 18 twenty-one (21) days of entry of this order, but no further response will be required from 19 respondents until further order of the Court. 20 The Clerk accordingly will send a copy of this order to the pro se petitioner, the 21 Nevada Attorney General, the Federal Public Defender, and the CJA Coordinator for this 22 division. The Clerk further will provide copies of all prior filings herein to both the Attorney 23 General (to the extent not previously copied) and the Federal Public Defender in a manner 24 consistent with the Clerk’s current practice, such as regeneration of notices of electronic 25 filing. 26 DATED THIS 11th day of October 2017. 27 MIRANDA M. DU UNITED STATES DISTRICT JUDGE 28 2

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