Christie v. Garrett

Opinion

1 UNITED STATES DISTRICT COURT

2 DISTRICT OF NEVADA

3 STEPHEN CHRISTIE, Case No. 3:23-cv-00255-ART-CLB

4 Petitioner, ORDER v. 5 NETHANJAH BREITENBACH, 6 Respondents. 7 8 Pro se Petitioner Stephen Christie filed a Petition for Writ of Habeas Corpus 9 under 28 U.S.C. § 2254. (ECF No. 10 (“Petition”).) On July 7, 2023, the court 10 conducted an initial review of the Petition, directed service of the Petition, and 11 sua sponte raised the issue of counsel. (ECF No. 9.) The court gave Christie 30 12 days to file a motion for the appointment of counsel if he desired that counsel be 13 appointed. (Id.) Christie timely complied, filing his motion for appointment of 14 counsel on July 18, 2023. (ECF No. 12.) 15 There is no constitutional right to appointed counsel for a federal habeas 16 corpus proceeding. Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); Luna v. 17 Kernan, 784 F.3d 640, 642 (9th Cir. 2015) (citing Lawrence v. Florida, 549 U.S. 18 327, 336–37 (2007)). An indigent petitioner may request appointed counsel to 19 pursue that relief. 18 U.S.C. § 3006A(a)(2)(B). The decision to appoint counsel is 20 generally discretionary. Id. (authorizing appointed counsel when “the interests of 21 justice so require”). However, counsel must be appointed if the complexities of 22 the case are such that denial of counsel would amount to a denial of due process, 23 and where the petitioner is a person of such limited education as to be incapable 24 of fairly presenting his claims. LaMere v. Risley, 827 F.2d 622, 626 (9th Cir. 25 1987); Brown v. United States, 623 F.2d 54, 61 (9th Cir. 1980). 26 Following review of the Petition and the motion for appointment of counsel, 27 the court provisionally appoints the Federal Public Defender to represent 28 Christie, finding that appointment of counsel is in the interests of justice given, 1 || among other things, the complexities of this case and Christie’s lengthy sentence. 2 It is therefore ordered that the motion for counsel (ECF No. 12) is granted. 3 It is further ordered that the clerk electronically serve the Federal Public 4 || Defender a copy of this order, the screening order (ECF No. 9), and the Petition 5 || (ECF No. 10). The Federal Public Defender is provisionally appointed as counsel 6 || and will have 30 days to (1) undertake direct representation of Christie by filing 7 || a notice of appearance or (2) indicate the office’s inability to represent Christie in 8 || these proceedings. If the Federal Public Defender is unable to represent Christie, 9 || the court will appoint alternate counsel. Appointed counsel will represent Christie 10 || in all federal proceedings related to this matter, including any appeals or 11 || certiorari proceedings, unless allowed to withdraw. A deadline for the filing of an 12 |} amended petition and/or seeking other relief will be set after counsel has entered 13 || an appearance. 14 It is further ordered that any deadline established and/or any extension 15 || thereof will not signify any implied finding of a basis for tolling during the time 16 || period established. Christie remains responsible for calculating the running of 17 || the federal limitation period and timely presenting claims. That is, by setting a 18 || deadline to amend the petition and/or by granting any extension thereof, the 19 || court makes no finding or representation that the Petition, any amendments 20 || thereto, and/or any claims contained therein are not subject to dismissal as 21 || untimely. See Sossa v. Diaz, 729 F.3d 1225, 1235 (9th Cir. 2013). 22 It is further ordered that the clerk is directed to send a copy of this order 23 || to Christie and the CJA Coordinator for this division. 24 DATED THIS 21st day of July 2023. 25 en 2 Are assed 27 UNITED STATES DISTRICT JUDGE 28