Young v. State of Nevada

Filing 18

ORDER that petitioner's first application ECF No. 8 to proceed in forma pauperis is GRANTED; second pauper application ECF No. 10 is DENIED as moot; that petitioner's remaining motions ECF Nos. 5 , 6 , 9 , 12 , 13 , 14 , 15 , 16 & 17 are DENIED; that counsel is appointed herein; FPD to undertake direct representation of petitioner or to indicate to the Court the inability to represent within (30) days; Clerk to add AG as counsel for responde nts; AG to enter a notice of appearance by 11/16/2017, but no further response is required from respondents until further order of the Court; Clerk to send copy of order to petitioner, AG, FPD and CJA Coordinator (mailed to petitioner and e-serve on 10/26/2017); Clerk to provide copies of all prior filings to AG and FPD (NEF regenerated on 10/26/2017). Signed by Judge Howard D. McKibben on 10/26/2017. (Copies have been distributed pursuant to the NEF - KW)

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1 2 3 4 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 5 6 7 TERRELL YOUNG, 8 9 Petitioner, vs. ORDER 10 11 3:17-cv-00118-HDM-VPC BACA, et al., Respondents. 12 13 14 This habeas matter under 28 U.S.C. § 2254 comes before the Court on petitioner’s first 15 and second applications (ECF Nos. 8 & 10) to proceed in forma pauperis, multiple additional 16 motions (ECF Nos. 5, 6, 9, 12, 13, 14, 16 & 17) filed by petitioner, and for initial review under 17 Rule 4 of the Rules Governing Section 2254 Cases (the “Habeas Rules”). Pauper Applications 18 19 The Court finds that petitioner is unable to pay the filing fee. The first pauper 20 application therefore will be granted, and the second pauper application will be denied as 21 moot. 22 Appointment of Counsel 23 Following initial review, the Court finds sua sponte that appointment of counsel would 24 be in the interests of justice under 18 U.S.C. § 3006A. There is a substantial issue as to 25 whether the petition is timely. However, review of the online state court dockets further 26 reflects that there potentially may be factual issues as to petitioner’s mental health status 27 and/or as to his representation during the relevant time period. Under Habeas Rule 8(c), 28 appointment of federal habeas counsel would become mandatory if such factual issues 1 ultimately require an evidentiary hearing. Petitioner further appears to be subject to a 2 sentence of, inter alia, two consecutive sentences of life without the possibility of parole. The 3 Court accordingly will appoint counsel for petitioner. Pending Motions 4 5 6 All remaining pending motions will be denied as moot following upon the appointment of counsel and/or as failing to present a cogent request for relief by motion. 7 IT THEREFORE IS ORDERED that petitioner’s first application (ECF No. 8) to proceed 8 in forma pauperis is GRANTED, such that petitioner shall not be required to pay the filing fee, 9 and that his second pauper application (ECF No. 10) is DENIED as m oot. 10 11 IT FURTHER IS ORDERED that petitioner’s remaining motions (ECF Nos. 5, 6, 9, 12, 13, 14, 15, 16 & 17) are DENIED. 12 IT FURTHER IS ORDERED that counsel is appointed herein pursuant to 18 U.S.C. § 13 3006A. The counsel appointed will represent petitioner in all federal proceedings related to 14 this matter, including any appeals or certiorari proceedings, unless allowed to withdraw. 15 IT FURTHER IS ORDERED that the Federal Public Defender shall be provisionally 16 appointed as counsel and shall have thirty (30) days to undertake direct representation of 17 petitioner or to indicate to the Court the office's inability to represent petitioner in these 18 proceedings. If the Federal Public Defender is unable to represent petitioner, the Court then 19 shall appoint alternate counsel. A deadline for the filing of an amended petition and/or 20 seeking other relief will be set after counsel has entered an appearance. 21 anticipates setting the deadline for approximately one hundred twenty (120) days from entry 22 of the formal order of appointment. Any deadline established and/or any extension thereof 23 will not signify any implied finding of a basis for tolling during the time period established. 24 Petitioner at all times remains responsible for calculating the running of the federal limitation 25 period and timely presenting claims. That is, by setting a deadline to amend the petition 26 and/or by granting any extension thereof, the Court makes no finding or representation that 27 the petition, any amendments thereto, and/or any claims contained therein are not subject to 28 dismissal as untimely. See Sossa v. Diaz, 729 F.3d 1225, 1235 (9th Cir. 2013). -2- The Court 1 IT FURTHER IS ORDERED, so that the respondents may be electronically served with 2 any papers filed through counsel, that the Clerk of Court shall add state attorney general 3 Adam P. Laxalt as counsel for respondents and shall make informal electronic service of this 4 order upon respondents by directing a notice of electronic filing to him. Respondents' counsel 5 shall enter a notice of appearance within twenty-one (21) days of entry of this order, but no 6 further response shall be required from respondents until further order of the Court. 7 The Clerk accordingly shall send a copy of this order to the pro se petitioner, the 8 Nevada Attorney General, the Federal Public Defender, and the CJA Coordinator for this 9 division. 10 The Clerk further shall provide copies of all prior filings herein to both the Attorney 11 General and the Federal Public Defender in a manner consistent with the Clerk's current 12 practice, such as regeneration of notices of electronic filing. 13 DATED: October 26, 2017. 14 15 16 17 __________________________________ HOWARD D. MCKIBBEN United States District Judge 18 19 20 21 22 23 24 25 26 27 28 -3-

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