Guzman v. State of Nevada et al

Filing 3

ORDER that petitioners Application to Proceed In Forma Pauperis ECF No. 1 isDENIED;Clerk to separately file the Petition for Writ of Habeas Corpus ECF No. 1 -1 and the Motion for Appointment of Counsel ECF No. 1 -2; petitioners Motion f or Appointment of Counsel is GRANTED; the Federal Public Defender for the District of Nevada (FPD) is appointed to represent petitioner; if the FPD is unable to represent the petitioner, due to a conflict of interest or other reason, then alte rnate counsel will be appointed; the Clerk shall electronically serve upon the FPD a copy of this order, together with a copy of the Petition for Writ of Habeas Corpus (e-served on 08/31/2017); FPD shall have until 09/30/2017to file a notice of appearance, or to indicate to the Court its inability to represent the petitioner in this case; the court will set a new deadline for payment of the filing fee after counsel appear for the petitioner and the respondents; the Clerk to add Adam Paul Laxalt, AG, as counsel for respondents; Clerk to electronically serve upon respondents a copy of the Petition for Writ of Habeas Corpus and a copy of this order (e-served on 08/31/2017); respondents shall have 30 days from the date on which the pet ition is served upon them to appear in this action; respondents will not be required to respond to the habeas petition at this time; the court will establish a schedule for furtherproceedings in this case after counsel appear for the petitioner and the respondents. Signed by Judge Howard D. McKibben on 08/31/2017. (copy of order sent to P) (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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MARCO GUZMAN,

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Petitioner,

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vs.

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3:17-cv-00515-HDM-VPC

NEVADA ATTORNEY GENERAL, et al.,

ORDER
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Respondents.
_____________________________________/

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This action is a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, by

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Marco Guzman, a Nevada prisoner. On August 25, 2017, Guzman filed an application to proceed

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in forma pauperis (ECF No. 1), along with his habeas corpus petition (attached to application to

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proceed in forma pauperis, at ECF No. 1-1) and a motion for appointment of counsel (attached to

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application to proceed in forma pauperis, at ECF No. 1-2).

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In light of the information provided in the application to proceed in forma pauperis, the

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Court finds that Guzman is able to pay the $5 filing fee for this action. The Court will deny the

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application to proceed in forma pauperis, but will not require Guzman to pay the filing fee until after

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counsel appears for him.

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The information provided in the application to proceed in forma pauperis also indicates that
Guzman cannot afford counsel. “Indigent state prisoners applying for habeas corpus relief are not

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entitled to appointed counsel unless the circumstances of a particular case indicate that appointed

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counsel is necessary to prevent due process violations.” Chaney v. Lewis, 801 F.2d 1191, 1196

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(9th Cir. 1986) (citing Kreiling v. Field, 431 F.2d 638, 640 (9th Cir. 1970) (per curiam). The court

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may, however, appoint counsel at any stage of the proceedings “if the interests of justice so require.”

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See 18 U.S.C. § 3006A; see also Rule 8(c), Rules Governing § 2254 Cases; Chaney, 801 F.2d at

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1196. The Court finds that appointment of counsel is in the interests of justice in this case. The

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Court will grant the motion for appointment of counsel.

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The Court has reviewed Guzman’s petition, pursuant to Rule 4 of the Rules Governing
Section 2254 Cases in the United States District Courts, and determines that it merits service upon

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respondents and a response by respondents. The court will order the petition served upon

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respondents, will direct respondents to appear, but will not require any further action on the part of

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respondents at this time.

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IT IS THEREFORE ORDERED that petitioner’s Application to Proceed In Forma
Pauperis (ECF No. 1) is DENIED.

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IT IS FURTHER ORDERED that the Clerk of the Court shall separately file the Petition

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for Writ of Habeas Corpus (currently attached to application to proceed in forma pauperis, at ECF

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No. 1-1) and the Motion for Appointment of Counsel (currently attached to application to proceed in

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forma pauperis, at ECF No. 1-2).

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IT IS FURTHER ORDERED that petitioner’s Motion for Appointment of Counsel is

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GRANTED. The Federal Public Defender for the District of Nevada (FPD) is appointed to

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represent petitioner. If the FPD is unable to represent the petitioner, due to a conflict of interest or

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other reason, then alternate counsel will be appointed. In either case, counsel will represent the

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petitioner in all federal-court proceedings relating to this matter, unless allowed to withdraw.

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IT IS FURTHER ORDERED that the Clerk of the Court shall electronically serve upon the
FPD a copy of this order, together with a copy of the Petition for Writ of Habeas Corpus.

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IT IS FURTHER ORDERED that the FPD shall have 30 days from the date of entry of this

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order to file a notice of appearance, or to indicate to the Court its inability to represent the petitioner

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in this case.

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IT IS FURTHER ORDERED that the time for petitioner to pay the filing fee for this action,

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or file a new application to proceed in forma pauperis is extended. The court will set a new deadline

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for payment of the filing fee after counsel appear for the petitioner and the respondents.

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IT IS FURTHER ORDERED that the Clerk of the Court shall add Adam Paul Laxalt,
Attorney General of the State of Nevada, as counsel for respondents.
IT IS FURTHER ORDERED that the Clerk of the Court shall electronically serve upon
respondents a copy of the Petition for Writ of Habeas Corpus and a copy of this order.
IT IS FURTHER ORDERED that respondents shall have 30 days from the date on which

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the petition is served upon them to appear in this action. Respondents will not be required to

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respond to the habeas petition at this time.

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IT IS FURTHER ORDERED that the court will establish a schedule for further
proceedings in this case after counsel appear for the petitioner and the respondents.

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Dated this 31st day of August, 2017.

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UNITED STATES DISTRICT JUDGE
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