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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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 DISTRICT OF NEVADA 9 *** 10 LUIS CARDENAS-ORNELAS, 11 Petitioner, ORDER v. 12 13 Case No. 3:17-cv-00461-MMD-VPC RENEE BAKER, et al., Respondents. 14 15 This habeas matter under 28 U.S.C. § 2254 comes before the Court on petitioner’s 16 application to proceed in forma pauperis (ECF No. 1), on his motion for appointment of 17 counsel submitted with the petition (ECF No. 1-2), and for initial review under Rule 4 of 18 the Rules Governing Section 2254 Cases. The Court finds that petitioner is unable to pay the filing fee within a reasonable 19 20 time and therefore will grant the pauper application. 21 Turning to petitioner’s motion for appointment of counsel, the Court finds that 22 appointment of counsel is in the interests of justice taking into account, inter alia, the 23 lengthy sentence structure, the number and complexity of potential claims, and 24 petitioner’s relatively limited ability to articulate his claims in proper person with the 25 resources available to him. The motion accordingly will be granted. 26 It is therefore ordered that petitioner’s application to proceed in forma 27 pauperis (ECF No. 1) is granted and that petitioner will not be required to pay the filing 28 fee. 1 It is further ordered that the Clerk file the petition and motion for appointment of 2 counsel, that the motion is granted, and that the Clerk reflect the grant of the motion when 3 docketing the motion, in a manner consistent with the Clerk’s current practice for such 4 matters. The counsel appointed will represent petitioner in all federal proceedings related 5 to this matter, including any appeals or certiorari proceedings, unless allowed to withdraw. 6 It is further ordered that the Federal Public Defender will be provisionally appointed 7 as counsel and will have thirty (30) days to undertake direct representation of petitioner 8 or to indicate to the Court the office's inability to represent petitioner in these proceedings. 9 If the Federal Public Defender is unable to represent petitioner, the Court will then appoint 10 alternate counsel. A deadline for the filing of an amended petition and/or seeking other 11 relief will be set after counsel has entered an appearance. The Court anticipates, given 12 the number of potential claims herein and the associated investigation potentially 13 involved, setting the deadline for approximately one hundred fifty (150) days from entry 14 of the formal order of appointment. Any deadline established and/or any extension thereof 15 will not signify any implied finding of a basis for tolling during the time period established. 16 Petitioner at all times remains responsible for calculating the running of the federal 17 limitation period and timely presenting claims. That is, by setting a deadline to amend the 18 petition and/or by granting any extension thereof, the Court makes no finding or 19 representation that the petition, any amendments thereto, and/or any claims contained 20 therein are not subject to dismissal as untimely. See Sossa v. Diaz, 729 F.3d 1225, 1235 21 (9th Cir. 2013). 22 It is further ordered, so that the respondents may be electronically served with any 23 papers filed through counsel, the Clerk will add state attorney general Adam P. Laxalt as 24 counsel for respondents and will make informal electronic service of this order upon 25 respondents by directing a notice of electronic filing to him. Respondents' counsel must 26 enter a notice of appearance within twenty-one (21) days of entry of this order, but no 27 further response will be required from respondents until further order of the Court. 28 /// 2 1 It is further ordered that the Clerk send a copy of this order to the pro se petitioner, 2 the Nevada Attorney General, the Federal Public Defender, and the CJA Coordinator for 3 this division. 4 It is further ordered that the Clerk provide copies of all prior filings herein to both 5 the Attorney General and the Federal Public Defender in a manner consistent with the 6 Clerk's current practice, such as regeneration of notices of electronic filing. 7 DATED THIS 6th day of November 2017. 8 9 MIRANDA M. DU UNITED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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