LaChance v. Wickham et al

Filing 4

ORDER that Petitioner's IFP Application (ECF No. 2 ) and his Motion for Appointment of Counsel (ECF No. 3 ) are denied without prejudice; petitioner will have until 6/22/2018 to dispatch a new and properly completed pauper applic ation with all required attachments along with a new motion for appointment of counsel; Clerk directed to send petitioner 2 copies of a pauper application form (mailed to petitioner on 4/23/2018. Signed by Judge Miranda M. Du on 4/23/2018. (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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***

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DARREN GABRIEL LACHANCE,

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Petitioner,

Case No. 3:17-cv-00689-MMD-WGC
ORDER

v.
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HAROLD WICKHAM, et al.,

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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. 2) and Motion for Appointment of

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Counsel (ECF No. 3).

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The filing fee has been paid, and Petitioner apparently is submitting the pauper

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application in order to establish financial eligibility for appointment of counsel under

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18 U.S.C. § 3006A(a)(2)(B). The pauper application is incomplete, however; and the

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application accordingly fails to demonstrate financial eligibility on the incomplete showing

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made. Under 28 U.S.C. § 1915(a)(2) and Local Rule LSR 1-2, a petitioner must attach

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both a properly executed financial certificate and an inmate account statement for the

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past six months. Petitioner attached only a financial certificate. That certificate reflects,

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inter alia, average monthly deposits of $275.00 for the prior six months. Without the further

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information in the inmate account statement as to the source and regularity of the

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deposits, and given the additional circumstance discussed below, the Court is unable to

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determine Petitioner’s financial eligibility on the incomplete material provided.

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The uncertainty as to Petitioner’s financial eligibility for appointment of counsel left

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by the pauper application is compounded by the fact that Petitioner secured the

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assistance of an attorney to prepare both the federal petition and the motion for

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appointment of counsel. (See ECF No. 1 at 27; ECF No. 3 at 2.) The possibility that

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Petitioner may have more financial resources available to him than a typical inmate

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coupled with the further fact that he actually has been able to secure assistance from

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counsel leaves a question, on the current incomplete record, as to whether Petitioner is

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financially eligible for the appointment of counsel.

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The motion for appointment of counsel further vaguely asserts: “Finally there is a

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potential ground having to do with both trial counsel and post-conviction counsel’s failure

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to interview and present a key percipient witness’s testimony.” (ECF No. 3 at 2.) Petitioner

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maintains that he therefore needs the Federal Public Defender to reinvestigate the facts

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of the case. Given the likely exhaustion and procedural default issues involved in

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presenting an entirely new claim for the first time on federal habeas review, Petitioner

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must provide more specifics as to the potential new ground. That is, he must present

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sufficient specifics for the Court to conclude that federal habeas counsel potentially would

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be able to demonstrate that state post-conviction counsel provided inadequate assistance

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of counsel in failing to investigate and present a substantial ground of ineffective

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assistance of trial counsel in failing, in turn, to investigate and present the witness’s

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testimony at trial. See generally Martinez v. Ryan, 566 U.S. 1 (2012). Federal habeas

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review otherwise is limited to only the claims exhausted in the state courts and, on those

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claims, further to the record presented to the state courts when they adjudicated the

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merits of the claims. See, e.g., Cullen v. Pinholster, 563 U.S. 170 (2011). Appointment of

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federal habeas counsel to develop wholly new claims thus is the exception rather than

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the rule. Therefore, for the Court to consider appointing of counsel in this regard,

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Petitioner must present more than a vague assertion that there is a potential ground

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having to do with a failure to investigate and present a key witness’s testimony. He must

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present specifics, including the witness’s identity, anticipated testimony, and relevance.
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The Court therefore will deny both the pauper application and the motion for

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appointment of counsel without prejudice on the showing made. Petitioner will have sixty

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(60) days within which to present a new and properly completed pauper application with

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all required attachments along with a new motion for appointment of counsel. If he does

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not do so within the period allowed, the Court thereafter will direct service upon

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respondents for a response with the matter then going forward as a proper person

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proceeding.

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It therefore is ordered that Petitioner’s application to proceed in forma pauperis

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(ECF No. 2) and his Motion for Appointment of Counsel (ECF No. 3) are denied without

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prejudice. Petitioner will have sixty (60) days within which to dispatch a new and properly

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completed pauper application with all required attachments along with a new motion for

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appointment of counsel.

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It further is ordered that petitioner must attach with any new motion for appointment

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of counsel that he files copies, if then available to him, of his state post-conviction petition

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and any supplements filed by counsel setting forth his claims in the state district court.

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The Clerk of Court will send Petitioner two copies of a pauper application form for
an inmate along with one copy of the instructions for the form.
DATED THIS 23rd day of April 2018.

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________________________________
MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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