Kinder v. LeGrand et al

Filing 15

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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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 DISTRICT OF NEVADA 7 *** 8 CHRISTOPHER BRIAN KINDER, 9 10 11 Petitioner, 14 ORDER v. ROBERT LeGRAND, et al., Respondents. 12 13 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.) 15 Following review of petitioner’s response (ECF No. 13) to the Court’s show-cause 16 order as to timeliness (ECF No. 10), the Court is persuaded that the interests of justice 17 require the appointment of counsel herein. Petitioner has raised factual issues regarding 18 equitable tolling that potentially may require an evidentiary hearing on tolling and that 19 otherwise warrant appointment of counsel for full factual development and adequate legal 20 argument. Cf. Rule 8(c) of the Rules Governing Section 2254 Cases (appointment of 21 counsel is mandatory where an evidentiary hearing is warranted). Petitioner’s pauper 22 application, while demonstrating an ability to pay the $5.00 filing fee, nonetheless 23 otherwise establishes petitioner’s financial eligibility for appointment of counsel under 18 24 U.S.C. § 3006A. 25 It therefore is ordered that petitioner's motion for appointment of counsel (ECF No. 26 5) is granted. The counsel appointed will represent petitioner in all federal proceedings 27 related to this matter, including any appeals or certiorari proceedings, unless allowed to 28 withdraw. 1 It further is 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). The Court's action herein further is without prejudice to any applicable 16 defenses, including untimeliness, that may be raised by the respondents following the 17 filing of a counseled petition. 18 It is further ordered, so that the respondents may be electronically served with any 19 papers filed through counsel, that the Clerk will add state attorney general Adam P. Laxalt 20 as counsel for respondents and will make informal electronic service of this order upon 21 respondents by directing a notice of electronic filing to him. Respondents' counsel will 22 enter a notice of appearance within twenty-one (21) days of entry of this order, but no 23 further response will be required from respondents until further order of the Court. 24 The Clerk accordingly will send a copy of this order to the pro se petitioner, the 25 Nevada Attorney General, the Federal Public Defender, and the CJA Coordinator for this 26 division. 27 /// 28 /// 2 1 The Clerk further will provide copies of all prior filings herein to both the Attorney 2 General and the Federal Public Defender in a manner consistent with the Clerk's current 3 practice, such as regeneration of notices of electronic filing 4 DATED THIS 26th day of September 2017. 5 6 MIRANDA M. DU UNITED STATES DISTRICT JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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