Cardenas-Ornelas v. Baker et al

Filing 3

ORDER that Petitioner's application to proceed in forma pauperis is granted; Clerk directed to file the petition and motion for appointment of counsel; motion is granted; FPD will be appointed counsel and will have (30) day s to undertake direct representation or indicate to the Court the offices inability to represent petitioner; Clerk directed to add AG as counsel for respondents; respondents' counsel must enter a notice of appearance by 11/14/2017; no fur ther response will be required from respondents until further order; Clerk directed to send a copy of this order to petition, AG, FPD and CJA Coordinator (mail to P and e-service on 11/06/2017); Clerk to provide copies of all prior filings to AG and FPD (NEF regenerated on 11/06/2017). Signed by Judge Miranda M. Du on 11/06/2017. (Copies have been distributed pursuant to the NEF - KW)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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LUIS CARDENAS-ORNELAS,

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Petitioner,

ORDER

v.

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Case No. 3:17-cv-00461-MMD-VPC

RENEE BAKER, et al.,
Respondents.

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This habeas matter under 28 U.S.C. § 2254 comes before the Court on petitioner’s

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application to proceed in forma pauperis (ECF No. 1), on his motion for appointment of

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counsel submitted with the petition (ECF No. 1-2), and for initial review under Rule 4 of

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the Rules Governing Section 2254 Cases.
The Court finds that petitioner is unable to pay the filing fee within a reasonable

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time and therefore will grant the pauper application.

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Turning to petitioner’s motion for appointment of counsel, the Court finds that

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appointment of counsel is in the interests of justice taking into account, inter alia, the

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lengthy sentence structure, the number and complexity of potential claims, and

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petitioner’s relatively limited ability to articulate his claims in proper person with the

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resources available to him. The motion accordingly will be granted.

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It is therefore ordered that petitioner’s application to proceed in forma

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pauperis (ECF No. 1) is granted and that petitioner will not be required to pay the filing

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fee.

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It is further ordered that the Clerk file the petition and motion for appointment of

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counsel, that the motion is granted, and that the Clerk reflect the grant of the motion when

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docketing the motion, in a manner consistent with the Clerk’s current practice for such

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matters. The counsel appointed will represent petitioner in all federal proceedings related

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

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It is further ordered that the Federal Public Defender will be provisionally appointed

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

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or to indicate to the Court the office's inability to represent petitioner in these proceedings.

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If the Federal Public Defender is unable to represent petitioner, the Court will then appoint

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alternate counsel. A deadline for the filing of an amended petition and/or seeking other

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relief will be set after counsel has entered an appearance. The Court anticipates, given

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the number of potential claims herein and the associated investigation potentially

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involved, setting the deadline for approximately one hundred fifty (150) days from entry

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of the formal order of appointment. Any deadline established and/or any extension thereof

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

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Petitioner at all times remains responsible for calculating the running of the federal

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limitation period and timely presenting claims. That is, by setting a deadline to amend the

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petition and/or by granting any extension thereof, the Court makes no finding or

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

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therein are not subject to dismissal as untimely. See Sossa v. Diaz, 729 F.3d 1225, 1235

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(9th Cir. 2013).

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It is further ordered, so that the respondents may be electronically served with any

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

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counsel for respondents and will make informal electronic service of this order upon

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respondents by directing a notice of electronic filing to him. Respondents' counsel must

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enter a notice of appearance within twenty-one (21) days of entry of this order, but no

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further response will be required from respondents until further order of the Court.

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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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It is further ordered that the Clerk provide copies of all prior filings herein to both

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the Attorney General and the Federal Public Defender in a manner consistent with the

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Clerk's current practice, such as regeneration of notices of electronic filing.

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DATED THIS 6th day of November 2017.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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