Kirby v. Brietenbach et al
Filing
11
ORDER - Petitioner John Edward Kirby's Applications to Proceed in forma pauperis (ECF Nos. 5 , 7 ) are denied. Petitioners Motion for Appointment of Counsel (ECF No. 1 -2) is granted. The Federal Public Defende r is provisionally appointed as counsel and will have 30 days (April 26, 2024) to undertake direct representation of Petitioner or to indicate the offices inability to represent Petitioner in these proceedings. The Clerk of the Cour t will file Petitioners Petition for Writ of Habeas Corpus (ECF No. 1 -1). The Clerk of Court is directed to add Nevada Attorney General Aaron D. Ford 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 AG only. Respondents' counsel must enter a notice of appearance within 21 days of entry of this order (April 17), but no further r esponse will be required from Respondents until further order of the Court. The Clerk of Court is further directed to send a copy of this order to the pro se Petitioner, the Nevada Attorney General, the Federal Public Defender, and the CJA Coordinator for this division (Email sent on March 27, 2024). Signed by District Judge Anne R. Traum on 3/27/2024. (Copies have been distributed pursuant to the NEF - GA)
1
2
3
UNITED STATES DISTRICT COURT
4
DISTRICT OF NEVADA
5
JOHN EDWARD KIRBY,
6
Case No. 3:24-cv-00002-ART-CSD
Petitioner,
v.
7
ORDER
WARDEN BRIETENBACH,
8
Respondents.
9
10
Petitioner John Edward Kirby, a pro se Nevada prisoner, commenced this
11
habeas action by filing a Petition for Writ of Habeas Corpus (ECF No. 1-1). This
12
habeas matter is before the Court for initial review under the Rules Governing
13
Section 2254 Cases, 1 as well as consideration of Kirby’s Motion for Appointment
14
of Counsel (ECF No. 1-2) and Applications to Proceed in forma pauperis (ECF Nos.
15
5, 7).
16
Pursuant to Habeas Rule 4, the assigned judge must examine the habeas
17
petition and order a response unless it “plainly appears” that the petitioner is not
18
entitled to relief. See Valdez v. Montgomery, 918 F.3d 687, 693 (9th Cir. 2019).
19
This rule allows courts to screen and dismiss petitions that are patently frivolous,
20
vague, conclusory, palpably incredible, false, or plagued by procedural defects.
21
Boyd v. Thompson, 147 F.3d 1124, 1128 (9th Cir. 1998); Hendricks v. Vasquez,
22
908 F.2d 490, 491 (9th Cir. 1990) (collecting cases).
23
Kirby challenges a conviction and sentence imposed by the Second Judicial
24
District Court for Clark County (“state court”). State of Nevada v. Kirby, Case
25
Nos. CR17-2061, CR18-0098, CR18-0091. On November 21, 2018, the state
26
27
28
All references to a “Habeas Rule” or the “Habeas Rules” in this order identify the
Rules Governing Section 2254 Cases in the United States District Courts.
1
1
1
court entered a judgment of conviction pursuant to guilty pleas for burglary,
2
grand larceny, property value greater than $3,500 or greater, and possession of
3
stolen motor vehicle, properly value greater than $3,500 or greater. The state
4
court sentenced Kirby to an aggregate term of 56 to 144 months.
5
In December 2019, Kirby filed a state habeas petition and in December
6
2020, he filed a supplemental state habeas petition. The state court denied relief
7
and the Nevada Court of Appeals affirmed the denial of relief on appeal. On
8
January 2, 2024, Kirby filed his federal habeas petition. ECF No. 1-1. The Court
9
instructed Kirby to file a complete IFP application or pay the filing fee. ECF No.
10
6. Although Kirby filed IFP applications, on February 22, 2024, he paid the filing
11
fee. Accordingly, the Court denies Kirby’s IFP applications. ECF Nos. 5, 7.
12
Turning to Kirby’s motion for appointment of counsel (ECF No. 1-2) to
13
assist him in this habeas action, there is no constitutional right to appointed
14
counsel in a federal habeas corpus proceeding. See Luna v. Kernan, 784 F.3d
15
640, 642 (9th Cir. 2015) (citing Lawrence v. Florida, 549 U.S. 327, 336-37 (2007)).
16
However, an indigent petitioner may request appointed counsel to pursue that
17
relief. See 18 U.S.C. § 3006A(a)(2)(B). The decision to appoint counsel is generally
18
discretionary. Id. (authorizing appointment of counsel “when the interests of
19
justice so require”). But counsel must be appointed if the complexities of the case
20
are such that denial of counsel would amount to a denial of due process, and
21
where the petitioner is so uneducated that he or she is incapable of fairly
22
presenting his or her claims. See La Mere v. Risley, 827 F.2d 622, 626 (9th Cir.
23
1987); Brown v. United States, 623 F.2d 54, 61 (9th Cir. 1980).
24
The Court finds that appointment of counsel in this case is in the interests
25
of justice. Kirby’s petition may raise relatively complex issues and it is unclear
26
whether he will be able to adequately articulate his claims in proper person with
27
the resources available to him. Therefore, Kirby’s motion for appointment of
28
counsel is granted.
2
1
IT THEREFORE IS ORDERED:
2
1. Petitioner John Edward Kirby’s Applications to Proceed in forma
3
pauperis (ECF Nos. 5,7) are denied.
4
2. Petitioner’s Motion for Appointment of Counsel (ECF No. 1-2) is granted.
5
3. The Federal Public Defender is provisionally appointed as counsel and
6
will have 30 days to undertake direct representation of Petitioner or to
7
indicate the office’s inability to represent Petitioner in these proceedings.
8
If the Federal Public Defender is unable to represent Petitioner, the
9
Court will appoint alternate counsel. The counsel appointed will
10
represent Petitioner in all federal proceedings related to this matter,
11
including any appeals or certiorari proceedings, unless allowed to
12
withdraw. A deadline for the filing of an amended petition and/or
13
seeking other relief will be set after counsel has entered an appearance.
14
The Court anticipates a deadline of approximately 60 days from entry of
15
the formal order of appointment.
16
4. Any deadline established and/or any extension thereof will not signify
17
any implied finding of a basis for tolling during the time period
18
established. Petitioner at all times remains responsible for calculating
19
the running of the federal limitation period and timely presenting
20
claims. That is, by setting a deadline to amend the petition and/or by
21
granting any extension thereof, the Court makes no finding or
22
representation that the petition, any amendments thereto, and/or any
23
claims contained therein are not subject to dismissal as untimely. See
24
Sossa v. Diaz, 729 F.3d 1225, 1235 (9th Cir. 2013).
25
26
5. The Clerk of the Court will file Petitioner’s Petition for Writ of Habeas
Corpus (ECF No. 1-1).
27
6. The Clerk of Court is directed to add Nevada Attorney General Aaron D.
28
Ford as counsel for Respondents and to provide Respondents an
3
1
electronic copy of all items previously filed in this case by regenerating
2
the Notice of Electronic Filing to the office of the AG only. Respondents’
3
counsel must enter a notice of appearance within 21 days of entry of
4
this order, but no further response will be required from Respondents
5
until further order of the Court.
6
The Clerk of Court is further directed to send a copy of this order to the pro se
7
Petitioner, the Nevada Attorney General, the Federal Public Defender, and the
8
CJA Coordinator for this division.
9
10
11
DATED THIS 27th day March 2024.
12
13
14
ANNE R. TRAUM
UNITED STATES DISTRICT JUDGE
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?