Tompkins v. Baca et al

Filing 3

ORDER - ECF No. 1 IFP applicaiton is granted. Clerk shall separately file the petition for writ of habeas corpus, and the motion for appointment of counsel. Clerk shall add AG, as counsel for respondents. Clerk shall e-serve upon respondents a cop y of the petition for writ of habeas corpus, and a copy of this order. (E-service 7/27/2016.) Respondents appear in this action by 8/16/2016. Respondents will not be required to respond to the habeas petition at this time. Petitioner's Motion for Appointment of Counsel is granted. The FPD is appointed to represent petitioner. Clerk shall e-serve FPD a copy of this order, together with a copy of the petition for writ of habeas corpus. (E-service 7/27/2016.) FPD shall file a notice of a ppearance, or to indicate to the Court its inability to represent the petitioner in this case, by 8/16/2016. The Court will establish a schedule after counsel appear for the petitioner and the respondents. Signed by Judge Miranda M. Du on 7/27/2016. (Copies have been distributed pursuant to the NEF - DRM) Modified on 7/27/2016 to reflect courtesy copy of order mailed to P at NNCC; and for font (DRM).

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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VALLIER WILLIAM TOMPKINS,

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Case No. 3:16-cv-00444-MMD-WGC
Petitioner,

ORDER

v.
WARDEN BACA, et al.,

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Respondents.

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This action is a petition for writ of habeas corpus, pursuant to 28 U.S.C. § 2254,

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by Vallier William Tompkins, a Nevada prisoner. On July 26, 2016, Tompkins initiated

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this action by filing an application to proceed in forma pauperis (ECF No. 1), along with

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his habeas corpus petition (attached to the application to proceed in forma pauperis),

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and a motion for appointment of counsel (also attached to the application to proceed in

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forma pauperis).

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The financial information provided with Tompkins’ application to proceed in forma

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pauperis indicates that he is unable to pay the filing fee for this action. Therefore, the

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application to proceed in forma pauperis will be granted, and Tompkins will not be

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required to pay the filing fee.

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The Court has reviewed Tompkins' habeas petition, pursuant to Rule 4 of the

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Rules Governing Section 2254 Cases in the United States District Courts, and

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determines that it merits service upon the respondents. Respondents will not be

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required to respond to the petition at this time, however, as the Court anticipates that,

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with counsel, Tompkins will likely file an amended petition.

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The Court will grant Tompkins’ motion for appointment of counsel. “Indigent state

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prisoners applying for habeas corpus relief are not entitled to appointed counsel unless

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the circumstances of a particular case indicate that appointed counsel is necessary to

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prevent due process violations.” Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986)

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(citing Kreiling v. Field, 431 F.2d 638, 640 (9th Cir. 1970) (per curiam). The court may,

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however, appoint counsel at any stage of the proceedings “if the interests of justice so

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require.” See 18 U.S.C. § 3006A; see also Rule 8(c), Rules Governing § 2254 Cases;

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Chaney, 801 F.2d at 1196. It appears that there may be statute of limitations issues to

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be addressed at the outset of this case, and it appears that Tompkins may not be able

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to adequately litigate those issues without counsel. Therefore, the Court finds that

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appointment of counsel is in the interests of justice.

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It is therefore ordered that petitioner’s Application to Proceed In Forma Pauperis

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(ECF No. 1) is granted. Petitioner is granted leave to proceed in forma pauperis.

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Petitioner will not be required to pay the filing fee for this action.

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It is further ordered that the Clerk of the Court separately file the petition for writ

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of habeas corpus, and the motion for appointment of counsel, both of which are

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currently attached to the in forma pauperis application, at ECF No. 1.

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It is further ordered that the Clerk of the Court add Adam Paul Laxalt, Attorney
General of the State of Nevada, as counsel for respondents.
It is further ordered that the Clerk of the Court electronically serve upon
respondents a copy of the petition for writ of habeas corpus, and a copy of this order.

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It is further ordered that respondents will have twenty (20) days from the date on

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which the petition is served upon them to appear in this action. Respondents will not be

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required to respond to the habeas petition at this time.

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It is further ordered that petitioner’s Motion for Appointment of Counsel is

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granted. The Federal Public Defender for the District of Nevada (FPD) is appointed to

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

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interest or other reason, then alternate counsel will be appointed. In either case,
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counsel will represent the petitioner in all federal-court proceedings relating to this

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matter, unless allowed to withdraw.

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It is further ordered that the Clerk of the Court electronically serve upon the FPD
a copy of this order, together with a copy of the petition for writ of habeas corpus.

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It is further ordered that the FPD will have twenty (20) days from the date of entry

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of this order to file a notice of appearance, or to indicate to the Court its inability to

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represent the petitioner in this case.

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It is further ordered that the Court will establish a schedule for further
proceedings after counsel appear for the petitioner and the respondents.
DATED THIS 27th day of July 2016.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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