Barron-Aguilar v. Wickham et al

Filing 4

ORDER that petitioner's ECF No. 1 IFP is denied as moot; Clerk directed to file the petition and accompanying motion for appointment of counsel; motion for appointment of counsel is granted; FPD provisionally appointed as couns el and has (30) days to undertake direct representation of petitioner or indicate to the Court inability to represent petitioner; respondents to be electronically served with any papers filed through counsel; Clerk directed to add AG as counsel for r espondents and e-serve copy of this order on AG (e-served 12/06/2017); AG to enter notice of appearance 12/27/2017; Clerk directed to send copy of order to petitioner, AG, FPD and CJA Coordinator (mailed to P and e-serve on 12/06/2017); Clerk to provide all prior filings to both the AG and FPD (NEF regenerated on 12/06/2017). Signed by Judge Miranda M. Du on 12/6/2017. (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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TITO BARRON-AGUILAR,

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Case No. 3:17-cv-00548-MMD-VPC
Petitioner,

ORDER

v.
HAROLD WICKHAM, 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 (ECF No. 1-2) submitted with the petition, and for initial review of the petition

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under Rule 4 of the Rules Governing Section 2254 Cases (the “Habeas Rules”).

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Petitioner has paid the filing fee. The pauper application therefore will be denied
as moot.

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On the motion for appointment of counsel, the financial exhibits submitted with the

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pauper application establish petitioner’s financial eligibility for appointment of counsel

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under 18 U.S.C. § 3006A. The Court finds that appointment of counsel is in the interests

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of justice given, inter alia, the relative length of petitioner’s aggregate sentence, the fact

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that petitioner was not represented by counsel in the state post-conviction proceedings

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as that pertains to the holding in Martinez v. Ryan, 566 U.S. 1 (2012), and the possibility

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that substantial time may remain in the federal limitation period under 28 U.S.C. §

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2244(d), allowing federal habeas counsel the opportunity to investigate and pursue

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available claims potentially without relation back limitations. However, petitioner at all

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times remains responsible for properly calculating the running of the limitation period and

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timely presenting claims.

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It is therefore ordered that petitioner’s (ECF No. 1) to proceed in forma pauperis
application is denied as moot.

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It is further ordered that, the filing fee having been paid, the Clerk of Court will file

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the petition and accompanying motion for appointment of counsel, that the motion for

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

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when docketing the motion. The counsel appointed will represent petitioner in all federal

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proceedings related to this matter, including any appeals or certiorari proceedings, unless

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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 then will 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 setting

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the deadline for Monday, May 7, 2018, in the formal order of appointment. Any deadline

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established and/or any extension thereof will not signify any implied finding of a basis for

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tolling during the time period established. Petitioner at all times remains responsible for

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calculating the running of the federal limitation period and timely presenting claims. That

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is, by setting a deadline to amend the petition and/or by granting any extension thereof,

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the Court makes no finding or representation that the petition, any amendments thereto,

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and/or any claims contained therein are not subject to dismissal as untimely. See Sossa

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v. Diaz, 729 F.3d 1225, 1235 (9th Cir. 2013).1

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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, that the Clerk add state attorney general Adam P. Laxalt as

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counsel for respondents and 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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1Petitioner

additionally may move to invoke a “two-step” amendment procedure.
See, e.g., Harsh v. Gentry, No. 2:17-cv-02069-MMD-NJK, ECF No. 15 (D. Nev., Nov. 16,
2017).

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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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The Clerk accordingly will send a copy of this order to the pro se petitioner, the

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Nevada Attorney General, the Federal Public Defender, and the CJA Coordinator for this

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division.

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The Clerk further will provide copies of all prior filings herein to both the Attorney

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General and the Federal Public Defender in a manner consistent with the Clerk's current

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practice, such as regeneration of notices of electronic filing.

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DATED THIS 6th day of December 2017.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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