Kinder v. LeGrand et al
Filing
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ORDER - Petitioner's motion for counsel (ECF No. 5 ) is granted. FPD is provisionally appointed as counsel. FPD will have 30 days to undertake representation of petitioner or to indicate inability to do so. Clerk will add AG as counsel fo r respondents and will make informal electronic service of this order upon respondents. (E-service 9/27/2017,) Respondents' counsel shall enter a notice of appearance by 10/18/2017. Clerk shall send a copy of this order to the pro se p etitioner, the AG, the FPD, and the CJA Coordinator. (Copy to P, and E-service (NEF) to AG, FPD, and CJA Coordinator on 9/27/2017.) Clerk shall provide copies of all prior filings herein to both the AG and FPD. (E-service of Doc. Nos. 1-14 to AG and FPD via NEF regeneration on 9/27/2017.) Signed by Judge Miranda M. Du on 9/26/2017. (Copies have been distributed pursuant to the NEF - DRM)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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CHRISTOPHER BRIAN KINDER,
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Petitioner,
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ORDER
v.
ROBERT LeGRAND, et al.,
Respondents.
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Case No. 3:16-cv-00449-MMD-VPC
This habeas matter comes before the Court on petitioner’s motion for appointment
of counsel. (ECF No. 5.)
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Following review of petitioner’s response (ECF No. 13) to the Court’s show-cause
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order as to timeliness (ECF No. 10), the Court is persuaded that the interests of justice
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require the appointment of counsel herein. Petitioner has raised factual issues regarding
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equitable tolling that potentially may require an evidentiary hearing on tolling and that
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otherwise warrant appointment of counsel for full factual development and adequate legal
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argument. Cf. Rule 8(c) of the Rules Governing Section 2254 Cases (appointment of
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counsel is mandatory where an evidentiary hearing is warranted). Petitioner’s pauper
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application, while demonstrating an ability to pay the $5.00 filing fee, nonetheless
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otherwise establishes petitioner’s financial eligibility for appointment of counsel under 18
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U.S.C. § 3006A.
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It therefore is ordered that petitioner's motion for appointment of counsel (ECF No.
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5) is granted. The counsel appointed will represent petitioner in all federal proceedings
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related to this matter, including any appeals or certiorari proceedings, unless allowed to
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withdraw.
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It further is ordered that the Federal Public Defender will be provisionally appointed
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as counsel and will have thirty (30) days to undertake direct representation of petitioner
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or to indicate to the Court the office's inability to represent petitioner in these proceedings.
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If the Federal Public Defender is unable to represent petitioner, the Court then will appoint
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alternate counsel. A deadline for the filing of an amended petition and/or seeking other
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relief will be set after counsel has entered an appearance. The Court anticipates setting
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the deadline for approximately one hundred twenty (120) days from entry of the formal
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order of appointment. Any deadline established and/or any extension thereof will not
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signify any implied finding of a basis for tolling during the time period established.
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Petitioner at all times remains responsible for calculating the running of the federal
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limitation period and timely presenting claims. That is, by setting a deadline to amend the
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petition and/or by granting any extension thereof, the Court makes no finding or
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representation that the petition, any amendments thereto, and/or any claims contained
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therein are not subject to dismissal as untimely. See Sossa v. Diaz, 729 F.3d 1225, 1235
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(9th Cir. 2013). The Court's action herein further is without prejudice to any applicable
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defenses, including untimeliness, that may be raised by the respondents following the
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filing of a counseled petition.
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It is further ordered, so that the respondents may be electronically served with any
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papers filed through counsel, that the Clerk will add state attorney general Adam P. Laxalt
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as counsel for respondents and will make informal electronic service of this order upon
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respondents by directing a notice of electronic filing to him. Respondents' counsel will
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enter a notice of appearance within twenty-one (21) days of entry of this order, but no
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further response will be required from respondents until further order of the Court.
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The Clerk accordingly will send a copy of this order to the pro se petitioner, the
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Nevada Attorney General, the Federal Public Defender, and the CJA Coordinator for this
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division.
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The Clerk further will provide copies of all prior filings herein to both the Attorney
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General and the Federal Public Defender in a manner consistent with the Clerk's current
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practice, such as regeneration of notices of electronic filing
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DATED THIS 26th day of September 2017.
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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE
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