Zakouto v. Baca et al

Filing 6

ORDER that the application ECF No. 1 to proceed in forma pauperis is GRANTED; that petitioner's motion ECF No. 4 for appointment of counsel is GRANTED; counsel appointed will represent petitioner in all federal proceedings re lated to this matter, including any appeals or certiorari proceedings, unless allowed to withdraw; the FPD shall be provisionally appointed as counsel and shall have (30) days to undertake direct representation of petitioner or to indicate to the Cou rt the office's inability to represent petitioner in these proceedings; Clerk to add AG as counsel for respondents and shall make electronic service of this order upon respondents (e-served on 09/29/2017); respondents' counsel shall enter a notice of appearance within (21) days of entry of this order; in the event that the FPD undertakes representation in this matter, within sixty (60) days of entry of this order, counsel for petitioner and respondents shall confer together and submi t, jointly if possible or separately if not, a proposed scheduling order for the initial proceedings in this case; Clerk to send a copy of this order to the pro se petitioner, the Nevada Attorney General, the Federal Public Defender, and the CJA Coo rdinator for this division (mailed to P and e-served on 09/29/2017); Clerk to provide copies of all prior filings herein to both the AG and FPD (NEF regenerated on 09/29/2017). Signed by Judge Larry R. Hicks on 09/29/2017. (Copies have been distributed pursuant to the NEF - KW)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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VITALY ZAKOUTO,
Petitioner,

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vs.

3:17-cv-00046-LRH-VPC
ORDER

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ISIDRIO BACA, et al.,
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Respondents.
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This habeas matter under 28 U.S.C. § 2254 comes before the Court on petitioner's application
(ECF No. 1) to proceed in forma pauperis and his motion (ECF No. 4) for appointment of counsel.

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On the pauper application, the Court finds that the financial materials did not establish at the

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time that the action was filed that petitioner would be able to pay the filing fee within a reasonable

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period of time, particularly also taking into account the health issues referenced infra. The application

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therefore will be granted, and petitioner will not be required to pay the filing fee.

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Turning to the counsel motion, there appear to be potential issues as to, inter alia, whether the

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petition is successive, following upon the prior merits dismissal in No. 2:06-cv-00133-JCM-LRL, and

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further whether the petition is untimely. However, the Court is persuaded that the interests of justice

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require the appointment of counsel under 18 U.S.C. § 3006A(a)(2)(B) to litigate these and other issues

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in the case, given, inter alia, allegations that: (1) petitioner's native tongue is Hebrew, with only limited

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English skills; (2) he is visually impaired; (3) at 68 years old, he additionally has, inter alia,

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hypertensive and diabetic conditions; and (4) he is serving consecutive sentences of life without the

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possibility of parole.

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IT THEREFORE IS ORDERED that the application (ECF No. 1) to proceed in forma pauperis

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is GRANTED, that petitioner shall not be required to pay the filing fee, and that the Clerk of Court shall

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file the petition.

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IT FURTHER IS ORDERED that petitioner's motion (ECF No. 4) for appointment of counsel

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is GRANTED. The counsel appointed will represent petitioner in all federal proceedings related to this

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matter, including any appeals or certiorari proceedings, unless allowed to withdraw.

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IT FURTHER IS ORDERED that the Federal Public Defender shall be provisionally appointed

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as counsel and shall have thirty (30) days to undertake direct representation of petitioner or to indicate

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to the Court the office's inability to represent petitioner in these proceedings. If the Federal Public

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Defender is unable to represent petitioner, the Court then shall appoint alternate counsel.

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IT FURTHER IS ORDERED, so that the respondents may be electronically served with any

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papers filed through counsel, that the Clerk shall add state attorney general Adam P. Laxalt as counsel

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for respondents and shall make electronic service of this order upon respondents by directing a notice

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of electronic filing to him. Respondents' counsel shall enter a notice of appearance within twenty-one

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(21) days of entry of this order and further shall proceed as directed in the following paragraph.

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IT FURTHER IS ORDERED that, in the event that the Federal Public Defender undertakes

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representation in this matter, within sixty (60) days of entry of this order, counsel for petitioner and

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respondents shall confer together and submit, jointly if possible or separately if not, a proposed

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scheduling order for the initial proceedings in this case which variously may involve, inter alia, deferred

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action in this matter pending a counseled application to the Court of Appeals for permission to pursue

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a second or successive petition, proceedings in the district court initially on potential defenses, or

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instead the filing of a counseled amended petition prior to assertion of potential defenses. Regardless

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of any such scheduling order entered herein, any deadline established and/or any extension thereof will

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not signify any implied finding of a basis for tolling during the time period established. Petitioner at

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all times remains responsible for calculating the running of the limitation period and timely presenting

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claims. That is, by setting a deadline and/or by granting any extension thereof, the Court makes no

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finding or representation that the petition, any amendments thereto, and/or any claims contained therein

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are not subject to dismissal as untimely. See Sossa v. Diaz, 729 F.3d 1225, 1235 (9th Cir. 2013).
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The Clerk accordingly shall send a copy of this order to the pro se petitioner, the Nevada
Attorney General, the Federal Public Defender, and the CJA Coordinator for this division.

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The Clerk further shall provide copies of all prior filings herein to both the Attorney General

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and the Federal Public Defender in a manner consistent with the Clerk's current practice, such as

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regeneration of notices of electronic filing.

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DATED this 29th day of September, 2017.

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___________________________________
LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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