Eubanks v. Baker et al

Filing 5

ORDER Clerk shall file petition and motions attached to ECF No. 1 IFP application. Clerk shall add AG as counsel for respondents and electronically serve copy of petition and this order on respondents (served via NEF). Respondents shall hav e 20 days to appear. Motion for appointment of counsel is granted. FPD appointed. Clerk to electronically serve upon FPD copy of petition and this order (served via NEF). FPD will have 20 days to file notice of appearance or indicate inability to do so. Motion for leave to file excess pages is granted. Signed by Judge Miranda M. Du on 7/22/16. (Copies have been distributed pursuant to the NEF - JC)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 *** 9 CHARLES EUBANKS, 10 Case No. 3:16-cv-00336-MMD-WGC Petitioner, ORDER v. 11 12 RENEE BAKER, et al., 13 Respondents. 14 15 This action is a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 16 2254, by Charles Eubanks, a Nevada prisoner. Eubanks initiated this action on June 16, 17 2016, by filing an application to proceed in forma pauperis, along with his habeas 18 corpus petition (attached to application to proceed in forma pauperis), a motion for 19 appointment of counsel, and a motion for leave to file excess pages. (ECF No. 1.) The 20 Court denied Eubanks’ in forma pauperis application, and he has since paid the filing 21 fee. (ECF Nos. 3 and 4.) 22 The Court has reviewed Eubanks’ petition, pursuant to Rule 4 of the Rules 23 Governing Section 2254 Cases in the United States District Courts, and determines that 24 it merits service upon the respondents. Respondents will not be required to respond to 25 the petition at this time, however, as the Court anticipates that, with counsel, Eubanks 26 will likely file an amended petition. 27 The Court will grant Eubanks’ motion for appointment of counsel. “Indigent state 28 prisoners applying for habeas corpus relief are not entitled to appointed counsel unless 1 the circumstances of a particular case indicate that appointed counsel is necessary to 2 prevent due process violations.” Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986) 3 (citing Kreiling v. Field, 431 F.2d 638, 640 (9th Cir.1970) (per curiam). The court may, 4 however, appoint counsel at any stage of the proceedings “if the interests of justice so 5 require.” See 18 U.S.C. § 3006A; see also Rule 8(c), Rules Governing § 2254 Cases; 6 Chaney, 801 F.2d at 1196. It appears likely that there will be relatively complex issues 7 to be addressed in this case that Eubanks may not be able to adequately litigate without 8 counsel. Therefore, the Court finds that appointment of counsel is in the interests of 9 justice. 10 It is therefore ordered that the Clerk of the Court shall separately file the petition 11 for writ of habeas corpus and the motions currently attached to the in forma pauperis 12 application at ECF No. 1. It is further ordered that the clerk of the court shall add Adam Paul Laxalt, 13 14 Attorney General of the State of Nevada, as counsel for respondents. It is further ordered that the Clerk shall electronically serve upon respondents a 15 16 copy of the petition for writ of habeas corpus, and a copy of this order. 17 It is further ordered that respondents shall have 20 days from the date on which 18 the petition is served upon them to appear in this action. Respondents will not be 19 required to respond to the habeas petition at this time. 20 It is further ordered that petitioner’s Motion for Appointment of Counsel is 21 granted. The Federal Public Defender for the District of Nevada (FPD) is appointed to 22 represent petitioner. If the FPD is unable to represent the petitioner, due to a conflict of 23 interest or other reason, then alternate counsel will be appointed. In either case, 24 counsel will represent the petitioner in all federal-court proceedings relating to this 25 matter, unless allowed to withdraw. It is further ordered that the Clerk electronically serve upon the FPD a copy of 26 27 this order, together with a copy of the petition for writ of habeas corpus. 28 /// 2 1 It is further ordered that the FPD will have twenty (20) days from the date of entry 2 of this order to file a notice of appearance, or to indicate to the Court its inability to 3 represent the petitioner in this case. 4 5 6 7 8 It is further ordered that the Court will establish a schedule for further proceedings after counsel appear for the petitioner and the respondents. It is further ordered that petitioner’s motion for leave to file excess pages is granted. This proceeding is exempt from this Court’s Local Rule, LR 7-3. DATED THIS 22nd day of July 2016. 9 10 MIRANDA M. DU UNITED STATES DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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