Hernandez v. Warden Legrand et al

Filing 3

ORDER that Petitioner's IFP application ECF No. 1 is denied; filing fee ($5) due 1/3/18; clerk directed to file ECF Nos. 1 - 1 Petition and 1 - 2 Motion for Appointment of Counsel; ECF No. 1 - 2 Motion for Appointment of Coun sel is granted; FPD has until 1/3/18 to make an appearance; clerk directed to add AG as counsel for respondents and e-serve this order (e-served on 12/4/17); Respondents' notice of appearance due 12/25/17; clerk directed to send a copy of this order to FPD and CJA coordinator (e-served on 12/4/17); clerk directed to send copies of all prior filings to AG and FPD (NEF regenerated on 12/4/17); clerk to provide P 2 copies of this order (mailed to P on 12/4/17). Signed by Judge Miranda M. Du on 12/4/2017. (Copies have been distributed pursuant to the NEF - LH)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

DISTRICT OF NEVADA

8

***

9

JOSEPH A. HERNANDEZ,

10
11
12

Case No. 3:17-cv-00697-MMD-WGC
Petitioner,

ORDER

v.
LeGRAND, et al.,
Respondents.

13
14

This habeas matter under 28 U.S.C. § 2254 comes before the Court on petitioner’s

15

application (ECF No. 1) to proceed in forma pauperis, on his motion (ECF No. 1-2) for

16

appointment of counsel submitted with the petition, and for initial review under Rule 4 of

17

the Rules Governing Section 2254 Cases.

18

The Court finds that petitioner is able to pay the filing fee and therefore will deny

19

the pauper application. Petitioner therefore must pay the $5.00 filing fee. As discussed

20

further below, the Court is granting the motion for appointment of counsel also in this

21

order so that appointed counsel can begin investigation of potential claims in this matter

22

with substantial time potentially remaining in the federal limitation period. Petitioner still

23

must pay the $5.00 filing fee in response to this order. If he fails to do so timely, the action

24

will be dismissed for failure to pay the filing fee, the appointment of counsel

25

notwithstanding.

26

Turning to petitioner’s motion for appointment of counsel and initial review,

27

petitioner challenges his Nevada state conviction, pursuant to a guilty plea, of two counts

28

of lewdness with a child under the age of 14 years. He appears to have been sentenced

1

to two consecutive sentences life with the possibility of parole after 10 years on each

2

sentence. The financial materials submitted with the pauper application reflect that, while

3

petitioner is able to pay the filing fee, he otherwise is financially eligible for the

4

appointment of counsel. The Court finds that appointment of counsel is in the interests of

5

justice taking into account, inter alia: (a) the lengthy sentence structure; (b) the number

6

and complexity of the potential claims and procedural issues; (c) the need to assure that

7

petitioner’s ability to litigate issues associated with his alleged mental health conditions

8

are not impaired by any such mental health conditions and/or limitations on his access to

9

his prison and other medical records; and (d) the prospect that substantial time may

10

remain in the federal limitation period at the time of filing within which to assert federal

11

claims without reliance upon relation back.1 The motion for appointment of counsel

12

accordingly will be granted.

13

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

14

pauperis (ECF No. 1) is denied. Petitioner will have thirty (30) days from entry of this order

15

within which to have the filing fee of five dollars ($5.00) sent to the Clerk of Court. Failure

16

to timely comply with this order will result in the dismissal of this action.

17

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

18

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

19

when docketing the motion, in a manner consistent with the Clerk’s current practice for

20

such matters. The counsel appointed will represent petitioner in all federal proceedings

21

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

22

withdraw.

23

It is further ordered that the Federal Public Defender will be provisionally appointed

24

as counsel and will have thirty (30) days to undertake direct representation of petitioner

25

or to indicate to the Court the office's inability to represent petitioner in these proceedings.

26

If the Federal Public Defender is unable to represent petitioner, the Court then will appoint

27
28

1As

noted further, infra, however, petitioner at all times remains responsible for
calculating the running of the federal limitation period and timely asserting claims.
2

1

alternate counsel. A deadline for the filing of an amended petition and/or seeking other

2

relief will be set after counsel has entered an appearance. The Court anticipates, given

3

the number of potential claims herein and the associated investigation potentially

4

involved, setting the deadline for approximately one hundred twenty (120) days from entry

5

of the formal order of appointment. Any deadline established and/or any extension thereof

6

will not signify any implied finding of a basis for tolling during the time period established.

7

Petitioner at all times remains responsible for calculating the running of the federal

8

limitation period and timely presenting claims. That is, by setting a deadline to amend the

9

petition and/or by granting any extension thereof, the Court makes no finding or

10

representation that the petition, any amendments thereto, and/or any claims contained

11

therein are not subject to dismissal as untimely. See Sossa v. Diaz, 729 F.3d 1225, 1235

12

(9th Cir. 2013).

13

It is further ordered, so that the respondents may be electronically served with any

14

papers filed through counsel, that the Clerk add state attorney general Adam P. Laxalt as

15

counsel for respondents and make informal electronic service of this order upon

16

respondents by directing a notice of electronic filing to him. Respondents' counsel must

17

enter a notice of appearance within twenty-one (21) days of entry of this order, but no

18

further response will be required from respondents until further order of the Court.
The Clerk further will send a copy of this order to the Federal Public Defender and

19
20

the CJA Coordinator for this division.

21

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

22

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

23

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

24

///

25

///

26

///

27

///

28

///
3

1

Finally, the Clerk will provide petitioner two (2) hard copies of this order in proper

2

person. Petitioner must make the necessary arrangements to have a copy of this order

3

attached to the check for the filing fee.

4

DATED THIS 4th day of December 2017.

5
6
MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4