Brown v. Warden Baker et al

Filing 5

ORDER - Clerk directed to file the petition (ECF No. 1 -1), motion for a stay (ECF No. 1 -2) and motion for appointment of counsel (ECF No. 1 -3); the motion for a stay is denied without prejudice; the motion for appointment of counsel is granted; FPD appointed as counsel for petitioner and has 30 days to undertake direct representation of petitioner or indicate to the Court the office's inability to represent petitioner in these proceedings; Clerk directed to add AG as co unsel for respondents; AG notice of appearance due by 3/15/18; Clerk directed to send a copy of this order to NV AG, FPD, and CJA Coordinator; Clerk directed to provide copies of all prior filings to AG and FPD ((E-service and NEFs sent 2/22/18). See order for further details. Signed by Judge Miranda M. Du on 2/22/2018. (Copies have been distributed pursuant to the NEF - LH)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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JASON S. BROWN,

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Case No. 3:17-cv-00687-MMD-WGC
Petitioner,

v.

ORDER

WARDEN 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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motion for appointment of counsel (ECF No. 1-3) and motion for a stay (ECF No. 1-2)

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submitted with the petition as well as for initial review under Rule 4 of the Rules Governing

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Section 2254 Cases. The filing fee has been paid.

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On petitioner’s motion for appointment of counsel, the financial exhibits submitted

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with the pauper application establish petitioner’s financial eligibility for appointment of

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

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interests of justice given petitioner’s allegations of mental health issues possibly with

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regard to both the underlying offenses and competency in the state proceedings; the

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limitations placed on inmates in accessing, possessing, and presenting their medical

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records; the complexity of the potential procedural issues presented; and petitioner’s

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relatively lengthy sentence of 11 to 28 years. In appointing counsel, the Court makes no

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implicit finding or holding with regard to the existence of any alleged mental health issues

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and/or their impact on procedural and/or substantive issues in this action.

The motion for a stay will be denied without prejudice to a motion seeking a stay

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filed through counsel either in conjunction with or in lieu of an amended petition.
It is therefore ordered that, the filing fee having been paid, the Clerk of Court will

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file the petition.

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It is further ordered that the Clerk file the accompanying motion for a stay (ECF

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No. 1-2), that the motion is denied without prejudice, and that the Clerk will reflect this

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disposition of the motion when docketing the motion.

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

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counsel (ECF No. 1-3), that the motion is granted, and that the Clerk will reflect this

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disposition of the motion when docketing the motion. The counsel appointed will represent

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petitioner in all federal proceedings related to this matter, including any appeals or

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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 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 approximately one hundred twenty (120) days from entry of the formal

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order of appointment. Any deadline established and/or any extension thereof will not

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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, 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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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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The Clerk additionally will provide copies of all prior filings herein to both the

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

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current practice, such as regeneration of notices of electronic filing.

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DATED THIS 22nd day of February 2018.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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