Allen v. Gittere et al

Filing 3

ORDER - Petitioner's application to proceed in forma pauperis (ECF No. 1 ) is denied. Clerk is directed to separately file the Petition (ECF No. 1 -1) and the Motion for Appointment of Counsel (ECF No. 1 -2). Petitioner's Motion for Appointment of Counsel (ECF No. 1 -2) is granted. The Federal Public Defender for the District of Nevada is appointed to represent Petitioner. Clerk is directed to electronically serve upon the FPD a copy of this order, together wi th a copy of the Petition (ECF No. 1 -1) (electronic service to FPD on 3/31/2021). The FPD will have 30 days from the date of this order to file a notice of appearance, or to indicate to the Court its inability to represent the Petitioner in this case. The requirement that Petitioner pay the filing fee for this action or file a new application to proceed in forma pauperis is suspended. The Court will set a deadline for payment of the filing fee or filing of a new applicatio n to proceed in forma pauperis after counsel appears for Petitioner. Clerk is directed to add Aaron Ford, Attorney General, as counsel for Respondents and to provide Respondents an electronic copy of all items previously filed in this case by regenerating the Notice of Electronic Filing to the Office of the Attorney General only (copies served via NEF Regeneration to AG on 3/31/2021). Clerk is directed to electronically serve upon Respondents a copy of the Petition (ECF No. 1 -1) and a c opy of this order (electronic service on 3/31/2021). Respondents will have 30 days from the date of this order to appear in this action. Respondents will not be required to respond to the Habeas Petition at this time. Signed by Chief Judge Miranda M. Du on 3/31/2021. (Copies have been distributed pursuant to the NEF - AB)

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1 2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 *** 5 6 7 RONALD EUGENE ALLEN, JR., Petitioner, Case No. 3:21-cv-00141-MMD-WGC ORDER v. 8 9 10 WILLIAM GITTERE, et al., Respondents. 11 12 This action began with a petition for a writ of habeas corpus, pursuant to 28 U.S.C. 13 § 2254, filed by Petitioner by Ronald Eugene Allen, Jr., an individual incarcerated at 14 Nevada’s Ely State Prison. On March 29, 2021, Allen filed an application to proceed in 15 forma pauperis (ECF No. 1), along with his habeas petition (ECF No. 1-1), and a motion 16 for appointment of counsel (ECF No. 1-2). 17 The application to proceed in forma pauperis is incomplete in that it does not 18 include a completed financial certificate. See LSR 1-2. The Court will deny the application 19 to proceed in forma pauperis on that ground but will not require Allen to pay the filing fee, 20 or file a new in forma pauperis application, until after counsel appears for him. 21 State prisoners applying for habeas corpus relief are not entitled to appointed 22 counsel unless the circumstances indicate that appointed counsel is necessary to prevent 23 due process violations. See Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986) (citing 24 Kreiling v. Field, 431 F.2d 638, 640 (9th Cir. 1970) (per curiam)). The Court may, however, 25 appoint counsel at any stage of the proceedings if the interests of justice so require. See 26 18 U.S.C. § 3006A; see also Rule 8(c), Rules Governing § 2254 Cases; Chaney, 801 27 F.2d at 1196. Allen’s petition indicates that he is serving a sentence of life in prison with 28 the possibility of parole after ten years, and it appears that the petition raises issues that 1 may be relatively complex, such that Allen will not be able to adequately litigate this action 2 without counsel. The Court therefore finds that appointment of counsel is in the interests 3 of justice. The Court will grant Allen’s motion for appointment of counsel and will appoint 4 the Federal Public Defender for the District of Nevada (“FPD”) to represent him. 5 The Court has examined Allen’s petition pursuant to Rule 4 of the Rules Governing 6 Section 2254 Cases in the United States District Courts and determines that it merits 7 service upon Respondents. The Court will order the petition served upon Respondents, 8 and will direct Respondents to appear, but will not require any further action on the part 9 of the Respondents at this time. It is therefore ordered that Petitioner’s Application to Proceed in Forma Pauperis 10 11 (ECF No. 1) is denied. 12 It is further ordered that the Clerk of Court is directed to separately file the Petition 13 for Writ of Habeas Corpus (ECF No. 1-1), and the Motion for Appointment of Counsel 14 (ECF No. 1-2). 15 It is further ordered that Petitioner’s Motion for Appointment of Counsel (ECF No. 16 1-2) is granted. The Federal Public Defender for the District of Nevada is appointed to 17 represent Petitioner. If the FPD is unable to represent Petitioner, because of a conflict of 18 interest or for any other reason, alternate counsel will be appointed. In either case, 19 counsel will represent the Petitioner in all federal court proceedings relating to this matter, 20 unless allowed to withdraw. 21 It is further ordered that the Clerk of Court is directed to electronically serve upon 22 the FPD a copy of this order, together with a copy of the Petition for Writ of Habeas Corpus 23 (ECF No. 1-1). 24 It is further ordered that the FPD will have 30 days from the date of this order to 25 file a notice of appearance, or to indicate to the Court its inability to represent the 26 Petitioner in this case. 27 /// 28 2 1 It is further ordered that the requirement that Petitioner pay the filing fee for this 2 action or file a new application to proceed in forma pauperis is suspended. The Court will 3 set a deadline for payment of the filing fee or filing of a new application to proceed in 4 forma pauperis after counsel appears for Petitioner. 5 It is further ordered that the Clerk of Court is directed to add Aaron Ford, Attorney 6 General of the State of Nevada, as counsel for Respondents, and to provide Respondents 7 an electronic copy of all items previously filed in this case by regenerating the Notice of 8 Electronic Filing to the office of the Attorney General only. 9 It is further ordered that the Clerk of Court is directed to electronically serve upon 10 Respondents a copy of the Petition for Writ of Habeas Corpus (ECF No. 1-1) and a copy 11 of this order. 12 It is further ordered that Respondents will have 30 days from the date of this order 13 to appear in this action. Respondents will not be required to respond to the habeas petition 14 at this time. 15 DATED THIS 31st Day of March 2021. 16 17 18 MIRANDA M. DU CHIEF UNITED STATES DISTRICT JUDGE 19 20 21 22 23 24 25 26 27 28 3

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