Bacharach v. Reubart

• Court: District Court, D. Nevada
• Decided: May 5, 2022
• Docket: 3:22-cv-00122
• Status: Unknown

Opinion

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 JOSHUA WILLIAM BACHARACH, Case No. 3:22-cv-00122-ART-CSD

4 ORDER Petitioner, 5 v. 6 WILLIAM REUBART, et al., 7

8 Respondents.

9 Pro se Petitioner Joshua William Bacharach has filed a Petition for Writ of 10 Habeas Corpus under 28 U.S.C. § 2254. (ECF No. 1-1 (“Petition”).) This matter 11 comes before the court on initial review under the Rules Governing Section 2254 12 Cases (“Habeas Rules”) and for consideration of Bacharach’s motion for 13 appointment of counsel. For the reasons discussed below, the court directs 14 service of the Petition and grants Bacharach’s motion. 15 I. BACKGROUND 16 Bacharach challenges a conviction and sentence imposed by the Eighth 17 Judicial District Court for Clark County (“state court”). State of Nevada v. Joshua 18 Bacharach, Case No. C-14-299425-1.1 On January 8, 2016, the state court 19 entered a judgment of conviction, pursuant to a jury trial, for attempted murder 20 with the use of a deadly weapon, four counts of discharging a firearm from or 21 22 1 The court takes judicial notice of the online docket records of the Eighth Judicial District Court 23 and Nevada appellate courts. The docket records may be accessed by the public online at: https://www.clarkcountycourts.us/Anonymous/default.aspx and http://caseinfo.nvsupremecourt.us/public/caseSearch.do. 1 within a structure or vehicle, four counts of assault with a deadly weapon, stop 2 required on signal of police officer, resisting public officer with the use of a 3 firearm, possession of a firearm with an altered or obliterated serial number, and 4 three counts of possession of a firearm by an ex-felon. In total, Bacharach was

5 sentenced to 59.9 to 151 years in prison. Bacharach appealed, and the Nevada 6 Court of Appeals affirmed on October 19, 2016. Remittitur issued on November 7 15, 2016. 8 On November 8, 2017, Bacharach filed a state petition for writ of habeas 9 corpus. The state court denied post-conviction relief on May 5, 2021. Bacharach 10 filed a post-conviction appeal, and the Nevada Court of Appeals affirmed the 11 denial on February 3, 2022. Remittitur issued on February 28, 2022. 12 On March 6, 2022, Bacharach initiated this federal habeas corpus 13 proceeding.2 (ECF No. 1-1.) The court instructed Bacharach to resolve the filing 14 fee, and he timely complied. (ECF Nos. 3, 5.) 15 II. DISCUSSION 16 Habeas Rule 4 requires the assigned judge to examine the habeas petition 17 and order a response unless it “plainly appears” that the petition is not entitled 18 to relief. See Valdez v. Montgomery, 918 F.3d 687, 693 (9th Cir. 2019). This rule 19 allows courts to screen and dismiss petitions that are patently frivolous, vague, 20 conclusory, palpably incredible, false, or plagued by procedural defects. Boyd v. 21 Thompson, 147 F.3d 1124, 1128 (9th Cir. 1998); Hendricks v. Vasquez, 908 F.2d 22

23 2 On initial review, the court notes, without deciding, that it appears the AEDPA statute of limitations expires on or around May 11, 2022. 1 490, 491 (9th Cir. 1990) (collecting cases). A response is warranted in the instant 2 case. 3 This court now turns to Bacharach’s motion for the appointment of 4 counsel. (ECF No. 1-2.) There is no constitutional right to appointed counsel for

5 a federal habeas corpus proceeding. Pennsylvania v. Finley, 481 U.S. 551, 555 6 (1987); Luna v. Kernan, 784 F.3d 640, 642 (9th Cir. 2015) (citing Lawrence v. 7 Florida, 549 U.S. 327, 336–37 (2007)). An indigent petitioner may request 8 appointed counsel to pursue that relief. 18 U.S.C. § 3006A(a)(2)(B). The decision 9 to appoint counsel is generally discretionary. Id. (authorizing appointed counsel 10 when “the interests of justice so require”). However, counsel must be appointed 11 if the complexities of the case are such that denial of counsel would amount to 12 a denial of due process, and where the petitioner is a person of such limited 13 education as to be incapable of fairly presenting his claims. LaMere v. Risley, 14 827 F.2d 622, 626 (9th Cir. 1987); Brown v. United States, 623 F.2d 54, 61 (9th 15 Cir. 1980). 16 Following review of the Petition and the motion for appointment of counsel, 17 the court will provisionally appoint the Federal Public Defender to represent 18 Bacharach. The court finds that appointment of counsel is in the interests of 19 justice given, among other things, Bacharach’s lengthy aggregate sentence. 20 III. CONCLUSION 21 It is therefore ordered that the clerk file the Petition (ECF No. 1-1) and the 22 motion for appointment of counsel (ECF No. 1-2). 23 1 It is further ordered that the clerk add Aaron Ford, Attorney General of the 2 State of Nevada, as counsel for respondents, electronically serve respondents’ 3 counsel a copy of the Petition, electronically provide respondents’ counsel a copy 4 of this order, and electronically provide respondents’ counsel copies of all items

5 previously filed in this case by regenerating the Notices of Electronic Filing. 6 Respondents’ counsel must enter a notice of appearance within 21 days of entry 7 of this order, but no further response will be required until further order. 8 It is further ordered that the motion for appointment of counsel (ECF No. 9 1-2) is granted. 10 It is further ordered that the clerk shall electronically serve the Federal 11 Public Defender a copy of this order and the Petition (ECF No. 1-1). The Federal 12 Public Defender is provisionally appointed as counsel and will have 30 days to 13 (1) undertake direct representation of Bacharach by filing a notice of appearance 14 or (2) indicate the office’s inability to represent Bacharach in these proceedings. 15 If the Federal Public Defender is unable to represent Bacharach, the court will 16 appoint alternate counsel. Appointed counsel will represent Bacharach in all 17 federal proceedings related to this matter, including any appeals or certiorari 18 proceedings, unless allowed to withdraw. A deadline for the filing of an amended 19 petition and/or seeking other relief will be set after counsel has entered an 20 appearance. The court anticipates a deadline of approximately 90 days from 21 entry of the formal order of appointment. 22 It is further ordered that any deadline established and/or any extension 23 thereof will not signify any implied finding of a basis for tolling during the time 1] period established. Bacharach remains responsible for calculating the running the federal limitation period and timely presenting claims. That is, by setting deadline to amend the petition and/or by granting any extension thereof, the court makes no finding or representation that the Petition, any amendments 5||thereto, and/or any claims contained therein are not subject to dismissal as 6 untimely. See Sossa v. Diaz, 729 F.3d 1225, 1235 (9th Cir. 2013). 7 It is further ordered that the clerk is directed to send a copy of this order Bacharach and the CJA Coordinator for this division. ? Dated: THIS 5th Day of May, 2022 on Fre Hass ANNE R. TRAUM 11 UNITED STATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23