Massey v. The State of Nevada et al

Filing 3

ORDER - A decision on the IFP application ECF No. 1 is denied. It is further ordered that the Clerk of the Court is directed to separately file Petitioners Petition for Writ of Habeas Corpus ECF No. 1 -1, Motion for Appointment of Counsel ECF No. 1 -2, and Motion for Discovery ECF No. 1 -3. It is further ordered that Petitioners Motion for Appointment of Counsel (ECF No. 1-2) is granted. The Federal Public Defender for the District of Nevada (FPD) is appointed t o represent the Petitioner. It is further ordered that the Clerk of the Court is directed to electronically serve upon the FPD a copy of this order, together with a copy of the Petition for Writ of Habeas Corpus ECF No. 1 -1. (E-service of order & Petition of Writ on 8/30/2024). It is further ordered that the FPD will have 30 days from the date of entry of this order to file a notice of appearance, or to indicate to the Court its inability to represent the Petitioner in this case. Notice of Compliance is due by 9/29/2024. It is further ordered that the Clerk of the Court is directed to add Aaron Ford, Attorney General of the State of Nevada, 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. It is further ordered that Respondents will have 30 days from the date of entry of this order (du e by 9/29/2024) to appear in this action. Respondents will not be required to respond to the habeas petition at this time. It is further ordered that Petitioner's Motion for Discovery (ECF No. 1-3) is denied, without prejudice. Signed by Chief Judge Miranda M. Du on 8/30/2024. (For Distribution by law library.)(Copies have been distributed pursuant to the NEF - GA)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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JACOB ANGELO MASSEY,

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Case No. 3:24-cv-00385-MMD-CSD
Petitioner,

ORDER

v.
THE ATTORNEY GENERAL OF THE
STATE OF NEVADA, et al.,
Respondents.

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This action is a petition for a writ of habeas corpus under 28 U.S.C. § 2254 by

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Jacob Angelo Massey, an individual incarcerated at the Northern Nevada Correctional

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Center. Massey, acting pro se, has submitted for filing an application to proceed in forma

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pauperis (ECF No. 1), a petition for writ of habeas corpus (ECF No. 1-1), a motion for

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

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Massey’s application to proceed in forma pauperis (ECF No. 1) is incomplete in

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that it does not include the required financial certificate signed by a prison officer. See

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LSR 1-2. The Court will deny Massey’s application for that reason, without prejudice, but

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will defer the matter of payment of the filing fee or the filing of a new in forma pauperis

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application until after appointed counsel appears for Massey.

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The Court has examined Massey’s petition as mandated by Rule 4 of the Rules

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Governing Section 2254 Cases in the United States District Courts and determines that

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it merits service upon the Respondents. The Court will order the petition served upon the

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Respondents and will direct the Respondents to appear, but will not require any further

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action on the part of Respondents at this time.

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State prisoners applying for habeas corpus relief are not entitled to appointed

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counsel unless the circumstances indicate that appointed counsel is necessary to prevent

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due process violations. See Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986) (citing

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Kreiling v. Field, 431 F.2d 638, 640 (9th Cir. 1970) (per curiam)). The court may, however,

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appoint counsel at any stage of the proceedings if the interests of justice so require. See

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18 U.S.C. § 3006A; see also Rule 8(c), Rules Governing § 2254 Cases; Chaney, 801

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F.2d at 1196. The Court determines that the interests of justice call for appointment of

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counsel in this case. The Court will grant Massey’s motion for appointment of counsel

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and will appoint the Federal Public Defender for the District of Nevada (“FPD”) to

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represent Massey.

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The Court will deny Massey’s motion for discovery, without prejudice, in that such

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a motion is premature in this case at this time. After counsel appears for Massey, the

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Court will issue a scheduling order, which will include provisions scheduling the filing of a

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motion for discovery and other motions.

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It is therefore ordered that Petitioner’s Application to Proceed in Forma Pauperis
(ECF No. 1) is denied without prejudice.

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It is further ordered that the Clerk of the Court is directed to separately file

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Petitioner’s Petition for Writ of Habeas Corpus (ECF No. 1-1), Motion for Appointment of

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Counsel (ECF No. 1-2), and Motion for Discovery (ECF No. 1-3).

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It is further ordered that Petitioner’s Motion for Appointment of Counsel (ECF No.

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1-2) is granted. The Federal Public Defender for the District of Nevada (“FPD”) is

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appointed to represent the Petitioner. If the FPD is unable to represent the Petitioner,

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because of a conflict of interest or other reason, alternate counsel will be appointed.

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Counsel will represent Petitioner in all federal court proceedings relating to this matter,

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unless allowed to withdraw.

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It is further ordered that the Clerk of the Court is directed to electronically serve

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upon the FPD a copy of this order, together with a copy of the Petition for Writ of Habeas

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Corpus (ECF No. 1-1).

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It is further ordered that the FPD will have 30 days from the date of entry of this

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order to file a notice of appearance, or to indicate to the Court its inability to represent the

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Petitioner in this case.
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It is further ordered that the Clerk of the Court is directed to add Aaron Ford,

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Attorney General of the State of Nevada, as counsel for Respondents and to provide

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Respondents an electronic copy of all items previously filed in this case by regenerating

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the Notice of Electronic Filing to the office of the Attorney General only.

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It is further ordered that Respondents will have 30 days from the date of entry of

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this order to appear in this action. Respondents will not be required to respond to the

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habeas petition at this time.

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It is further ordered that Petitioner’s Motion for Discovery (ECF No. 1-3) is denied,
without prejudice.
DATED THIS 30th day of August 2024.

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MIRANDA M. DU
CHIEF UNITED STATES DISTRICT JUDGE

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