Nicholson v. Baker et al

Filing 25

ORDER that ECF No. 23 Motion, construed as a motion for appointment of counsel is granted. FPD is provisionally appointed as counsel and will have until 7/20/2018 to undertake direct representation of Petitioner or to indicate to the Court the office's inability to represent Petitioner in these proceedings. Clerk directed to send a copy of this Order to Petitioner, AG, FPD, and CJA Coordinator (E-service to AG, FPD and CJA Coordinator on 6/20/2018; mailed to petitioner on 6/20/2018). Signed by Judge Miranda M. Du on 6/20/2018. (Copies have been distributed pursuant to the NEF - LH)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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RICHARD NICHOLSON,

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Petitioner,

ORDER

v.

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Case No. 3:16-cv-00486-MMD-WGC

RENEE BAKER, et al.,
Respondents.

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On May 22, 2018, the Court entered an order granting Respondents’ unopposed

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motion to dismiss. (ECF No. 22.) The Court found that Grounds 1(b) and 3 of the Petition

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are unexhausted and directed Petitioner to advise the Court how he wished to proceed in

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light of the mixed petition. In response, Petitioner filed a motion that is difficult to interpret,

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as it cites Federal Rule of Civil Procedure 59(e) without indicating why the Court should

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reconsider its prior order, and appears to seek both dismissal of the unexhausted claims

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and a stay. (ECF No. 23.) The motion indicates that Petitioner wants to obtain counsel to

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advise him how to proceed.

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Petitioner has heretofore not requested appointment of counsel in these

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proceedings. However, the latest motion, the state court proceedings, and the Petition

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itself all suggest that Petitioner may not be able to adequately represent himself. Because

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Petitioner’s latest motion indicates a desire to obtain counsel, the Court construes the

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motion, in part, as a motion for appointment of counsel. So construed, the motion will be

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granted. In light of Petitioner’s mental health issues and the difficulties he appears to

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face in litigating his Petition, the Court believes that appointment of counsel is in the

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interests of justice. See 18 U.S.C. § 3006A.

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To the extent Petitioner seeks reconsideration of the Court’s May 22, 2018 Order,

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the motion is denied. To the extent Petitioner seeks dismissal of his unexhausted claims

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and/or a stay and abeyance, the motion is denied without prejudice to renew following the

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appearance of counsel on Petitioner’s behalf.

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It is therefore ordered that the Federal Public Defender will be provisionally

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appointed as counsel and will have thirty (30) days to undertake direct representation of

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Petitioner or to indicate to the Court the office’s inability to represent Petitioner in these

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proceedings. If the Federal Public Defender is unable to represent Petitioner, the Court

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then will appoint alternate counsel. The counsel appointed will represent Petitioner in all

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federal proceedings related to this matter, including any appeals or certiorari proceedings,

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unless allowed to withdraw. The deadline for Petitioner to respond to the Court’s May 22,

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2018 Order and/or to seek other relief will be reset after counsel has entered an

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appearance.

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It is further ordered that the Clerk send a copy of this Order to the pro se Petitioner,

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the Nevada Attorney General, the Federal Public Defender, and the CJA Coordinator for

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this division.

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DATED THIS 20th day of June 2018.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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