Thompson v. Baca et al

Filing 3

ORDER that petitioner's application to proceed in forma pauperis ECF No. 1 ) is granted; Clerk directed to file petitioner's motion for appointment of counsel ECF No. 1 -1, pp. 80-86 and said motion is granted; FPD will be provisionally appointed and will have (30) days to undertake direct representation of petitioner or indicate to the Court the office's inability to represent petitioner; clerk directed to add AG, as counsel for respondents; Clerk directe d to electronically serve upon respondents a copy of this order (e-served on 10/30//2017; respondents will have until 11/20/2017 to file a notice of appearance, but no further response is necessary; Clerk directed to send a copy of this order to petitioner, AG, FPD and CJA Coordinator (mailed to P and e-service on 10/30/2017); Clerk to provide copies of all prior filings to both the AG and FPD (NEF regenerated on 10/30/2017). Signed by Judge Miranda M. Du on 10/30/2017. (Copies have been distributed pursuant to the NEF - KW)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 DISTRICT OF NEVADA 7 *** 8 MARCEL D. THOMPSON, 9 Petitioner, ORDER v. 10 11 Case No. 3:17-cv-00330-MMD-WGC ISIDRO BACA, et al., Respondents. 12 13 This habeas matter under 28 U.S.C. § 2254 comes before the Court on petitioner’s 14 application to proceed in forma pauperis (ECF No. 1), on his motion for appointment of 15 counsel (ECF No. 1-1 at 80-86) submitted with the petition, and for initial review under 16 Rule 4 of the Rules Governing Section 2254 Cases. The Court finds that petitioner is unable to pay the filing fee and therefore will grant 17 18 the pauper application. 19 Turning to petitioner’s motion for appointment of counsel, petitioner Marcel 20 Thompson currently is 76 years old. He is serving multiple consecutive sentences of life 21 with the possibility of parole on his 1994 conviction on multiple counts of sexual assault. 22 The corrections department’s online inmate search information suggests that petitioner 23 may be serving his final consecutive sentence with no parole eligibility prior to December 24 2028. 25 The papers submitted by petitioner and the inmate assisting him reflect, inter alia, 26 that he has dementia and short term memory loss. (ECF No. 1-1 at 83-85; ECF No. 1-2.) 27 There appears to be a substantial issue as to whether, inter alia, the petition is 28 subject to dismissal as a successive petition because petitioner’s prior federal petition 1 was denied on the merits in No. 3:05-cv-00468-HDM-RAM and he has not obtained 2 authorization from the Court of Appeals to file a second or successive petition. The Court 3 finds that appointment of counsel is in the interests of justice to assure that petitioner’s 4 ability to respond on this issue, to seek any other appropriate relief in this Court or the 5 Court of Appeals, and/or to investigate and present his claims regarding, inter alia, newly- 6 discovered evidence and actual innocence is not impaired by the asserted mental health 7 conditions. In appointing counsel, the Court makes no implicit finding or holding with 8 regard to the potential merit of any contention or factual claim made by petitioner in the 9 current papers.1 10 It is therefore ordered that petitioner’s application to proceed in forma 11 pauperis (ECF No. 1) is granted. Petitioner will not be required to pay the filing fee, and 12 the Clerk of Court will file the petition and accompanying papers. 13 It is further ordered that, in filing same, the Clerk will separately file petitioner’s 14 motion for appointment of counsel, which currently is at pages 80-86 of ECF No. 1-1; that 15 said motion is granted; and that the Clerk will reflect the grant of the motion when 16 docketing the motion in a manner consistent with the Clerk’s current practice for such 17 matters. The counsel appointed will represent petitioner in all federal proceedings related 18 to this matter, including any appeals or certiorari proceedings, unless allowed to withdraw. 19 It is further ordered that the Federal Public Defender will be provisionally appointed 20 as counsel and will have thirty (30) days to undertake direct representation of petitioner 21 or to indicate to the Court the office's inability to represent petitioner in these 22 proceedings.2 If the Federal Public Defender is unable to represent petitioner, the Court 23 then will appoint alternate counsel. Following entry of a notice of appearance, the Court 24 anticipates initiating a sua sponte show-cause inquiry as to whether the petition should 25 26 27 28 1With regard to the successive-petition issue, the Court has not as yet definitively determined whether or not any amended or corrected judgments of conviction have been filed in the state district court. 2Counsel should review in particular petitioner’s allegations regarding the federal public defender’s prior representation of petitioner at ECF No. 1-1 at 10-12. 2 1 be dismissed as a successive petition. The Court anticipates setting the deadline for a 2 counseled response at approximately ninety (90) days from entry of the formal order of 3 appointment, to allow counsel an adequate opportunity to investigate the matter. Nothing 4 herein forecloses petitioner from seeking other appropriate relief in this Court or the Court 5 of Appeals and/or requesting that petitioner be allowed first to file a counseled amended 6 petition prior to addressing the successiveness of the petition and/or other issues. In all 7 events, any deadline established and/or any extension thereof will not signify any implied 8 finding of a basis for tolling during the time period established. Petitioner at all times 9 remains responsible for calculating the running of the federal limitation period and timely 10 presenting claims. That is, by setting a deadline and/or by granting any extension thereof, 11 the Court makes no finding or representation that the petition, any amendments thereto, 12 and/or any claims contained therein are not subject to dismissal as untimely. See Sossa 13 v. Diaz, 729 F.3d 1225, 1235 (9th Cir. 2013). 14 It is further ordered, so that the respondents may be electronically served with any 15 papers filed through counsel, that the Clerk will add state attorney general Adam P. Laxalt 16 as counsel for respondents and will make informal electronic service of this order upon 17 respondents by directing a notice of electronic filing to him. Respondents' counsel will 18 enter a notice of appearance within twenty-one (21) days of entry of this order, but no 19 further response will be required from respondents until further order of the Court. 20 The Clerk further will send a copy of this order to the pro se petitioner, the Nevada 21 Attorney General, the Federal Public Defender, and the CJA Coordinator for this division. 22 The Clerk additionally will provide copies of all prior filings herein to both the 23 Attorney General and the Federal Public Defender in a manner consistent with the Clerk's 24 current practice, such as regeneration of notices of electronic filing. 25 DATED THIS 30th day of October 2017. 26 27 MIRANDA M. DU UNITED STATES DISTRICT JUDGE 28 3

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