Reid v. Baker et al

Filing 5

ORDER The Court's prior order (ECF No. 3 ) denying petitioners IFP application is VACATED. Petitioner's IFP application (ECF No. 1 ) is GRANTED. Clerk shall file the petition and accompanying papers. The motion (ECF No. 1 -3) for appointment of counsel is GRANTED. The motion (ECF No. 1 -2) for a stay is DENIED without prejudice to a possible renewed motion filed through counsel. FPD is provisionally appointed as counsel and shall have thirty (30) days to undertake dire ct representation of petitioner, or indicate to the Court the office's inability to do so. The Clerk shall add AG as counsel for respondents and shall make informal electronic service of this order upon respondents. (E-service (NEF) 10/20/2017 ) Respondents' counsel shall enter a notice of appearance by 11/10/2017. Clerk shall send a copy of this order to the pro se petitioner, the AG, the FPD, and the CJA Coordinator. (E-service to AG, FPD, CJA 10/20/2017; paper copy mailed to P at LCC 10/20/2017.) Clerk further shall provide copies of all prior filings herein to both the AG and FPD. (Regenerated NEFs #1-4 to AG and FPD on 10/20/2017.) Signed by Judge Howard D. McKibben on 10/20/2017. (Copies have been distributed pursuant to the NEF - DRM)

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1 2 3 4 5 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 6 7 8 RAFAEL REID, 9 10 Petitioner, vs. ORDER 11 12 13 3:17-cv-00532-HDM-VPC CCS BAKER, et al., Respondents. 14 15 This habeas matter under 28 U.S.C. § 2254 comes before the Court in connection with 16 petitioner’s application (ECF No. 1) to proceed in forma pauperis and for initial review under 17 Rule 4 of the Rules Governing Section 2254 Cases. 18 By an order entered on October 5, 2017, the Court denied petitioner’s pauper 19 application without prejudice because petitioner had not submitted the required financial 20 attachments with the application. See ECF No. 3. However, petitioner mailed these materials 21 on or about September 29, 2017; and they were filed and entered subsequent to the Court’s 22 order. ECF No. 4. Under the prison mailbox rule, the materials are deemed to be filed when 23 mailed, which was prior to the order. Review of the materials reflects that petitioner is unable 24 to pay the $5.00 filing fee within a reasonable amount of time. The Court accordingly will 25 vacate its prior order denying the pauper application, will grant the application, and will 26 proceed to initial review. 27 On initial review, the Court finds that grant of petitioner’s motion (ECF No. 1-3) for 28 appointment of counsel submitted with the petition would be in the interests of justice. 1 Petitioner’s protective federal petition appears to have been constructively filed approximately 2 two weeks late. However, his papers present a possible basis for equitable tolling that 3 potentially may require an evidentiary hearing or other factual development, as petitioner 4 maintains that his state appellate counsel failed to timely inform him of the affirmance of his 5 conviction on direct appeal. The matter further presents potentially complicated procedural 6 issues with regard to exhaustion, procedural default, and the availability of a stay. In this 7 regard, the online docket sheet for the state district court does not reflect that petitioner has 8 filed a state post-conviction petition as yet. However, court minutes reflect that petitioner’s 9 motion to withdraw counsel recently was granted but further that the minute order informing 10 him of this action was sent to a different institution than the one in which petitioner was 11 incarcerated at approximately the same time when the federal petition was filed. The grant 12 of such a motion often is regarded as a prerequisite to the filing of a state petition in proper 13 person. 14 The Court accordingly will grant the motion for appointment of counsel and will deny 15 the pro se motion for a stay without prejudice to possible renewal of such a motion by counsel 16 following review of the matter. 17 IT THEREFORE IS ORDERED that the Court’s prior order (ECF No. 3) denying 18 petitioner’s pauper application is VACATED, that petitioner's application (ECF No. 1) to 19 proceed in forma pauperis is GRANTED, and that petitioner shall not be required to pay the 20 filing fee. 21 IT FURTHER IS ORDERED that the Clerk of Court shall file the petition1 and 22 accompanying papers, that the motion (ECF No. 1-3) for appointment of counsel submitted 23 with the petition is GRANTED, that the motion (ECF No. 1-2) for a stay is DENIED without 24 prejudice to a possible renewed motion file through counsel, and that the Clerk shall reflect 25 these actions on the motions when docketing the motions, in a manner consistent with the 26 Clerk’s current practice for such matters. 27 28 1 The filing of the petition does not signify that the pleading is free of deficiencies. -2- 1 IT FURTHER IS ORDERED that the counsel appointed will represent petitioner in all 2 federal proceedings related to this matter, including any appeals or certiorari proceedings, 3 unless allowed to withdraw. 4 IT FURTHER IS ORDERED that the Federal Public Defender shall be provisionally 5 appointed as counsel and shall have thirty (30) days to undertake direct representation of 6 petitioner or to indicate to the Court the office's inability to represent petitioner in these 7 proceedings. If the Federal Public Defender is unable to represent petitioner, the Court then 8 shall appoint alternate counsel. A deadline for the filing of an amended petition and/or 9 seeking other relief will be set after counsel has entered an appearance. The Court 10 anticipates setting the deadline for approximately one hundred twenty (120) days from entry 11 of the formal order of appointment. Any deadline established and/or any extension thereof 12 will not signify any implied finding of a basis for tolling during the time period established. 13 Petitioner at all times remains responsible for calculating the running of the federal limitation 14 period and timely presenting claims. That is, by setting a deadline to amend the petition 15 and/or by granting any extension thereof, the Court makes no finding or representation that 16 the petition, any amendments thereto, and/or any claims contained therein are not subject to 17 dismissal as untimely. See Sossa v. Diaz, 729 F.3d 1225, 1235 (9th Cir. 2013). 18 IT FURTHER IS ORDERED, so that the respondents may be electronically served with 19 any papers filed through counsel, that the Clerk shall add state attorney general Adam P. 20 Laxalt as counsel for respondents and shall make informal electronic service of this order 21 upon respondents by directing a notice of electronic filing to him. Respondents' counsel shall 22 enter a notice of appearance within twenty-one (21) days of entry of this order, but no further 23 response shall be required from respondents until further order of the Court. 24 The Clerk accordingly shall send a copy of this order to the pro se petitioner, the 25 Nevada Attorney General, the Federal Public Defender, and the CJA Coordinator for this 26 division. 27 //// 28 //// -3- 1 The Clerk further shall provide copies of all prior filings herein to both the Attorney 2 General and the Federal Public Defender in a manner consistent with the Clerk's current 3 practice, such as regeneration of notices of electronic filing. 4 DATED: October 20, 2017. 5 6 7 __________________________________ HOWARD D. MCKIBBEN United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4-

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