Fritz v. Breitenbach

Opinion

2 UNITED STATES DISTRICT COURT

3 DISTRICT OF NEVADA

4 GREGORY A. FRITZ, Case No. 3:23-cv-00241-ART-CLB

5 Petitioner, ORDER

6 v.

7 TIMOTHY GARRETT, et al.,

8 Respondents.

9 10 This action is a petition for a writ of habeas corpus, pursuant to 28 U.S.C. 11 § 2254, by Gregory A. Fritz, an individual incarcerated at Nevada’s Lovelock 12 Correctional Center. Fritz has filed an application to proceed in forma pauperis 13 (ECF No. 5), a petition for writ of habeas corpus (ECF No. 6), and a motion for 14 appointment of counsel (ECF No. 7). 15 The information provided by Fritz in his application to proceed in forma 16 pauperis (ECF No. 5) shows that he is able to pay the filing fee for this action. The 17 Court will, therefore, deny the application to proceed in forma pauperis, but will 18 not set a deadline for Fritz to pay the $5 filing fee until after appointed counsel 19 appears for him. 20 State prisoners applying for habeas corpus relief are not entitled to 21 appointed counsel unless the circumstances indicate that appointed counsel is 22 necessary to prevent due process violations. Chaney v. Lewis, 801 F.2d 1191, 23 1196 (9th Cir. 1986) (citing Kreiling v. Field, 431 F.2d 638, 640 (9th Cir. 1970) 24 (per curiam)). The court may, however, appoint counsel at any stage of the 25 proceedings if the interests of justice so require. See 18 U.S.C. § 3006A; see also 26 Rule 8(c), Rules Governing § 2254 Cases; Chaney, 801 F.2d at 1196. The Court 27 determines that the interests of justice call for appointment of counsel in this 28 case. The Court will grant Fritz’s motion for appointment of counsel and will 1 appoint the Federal Public Defender for the District of Nevada (FPD) to represent 2 him. 3 The Court has examined Fritz’s petition pursuant to Rule 4 of the Rules 4 Governing Section 2254 Cases in the United States District Courts and 5 determines that it merits service upon the Respondents. The Court will order the 6 petition served upon the Respondents, and will direct the Respondents to appear, 7 but will not require any further action on the part of Respondents at this time. 8 It is therefore ordered that Petitioner’s Application to Proceed in Forma 9 Pauperis (ECF No. 5) is denied. 10 It is further ordered that Petitioner’s Motion for Appointment of Counsel 11 (ECF No. 7) is granted. The Federal Public Defender for the District of Nevada 12 (FPD) is appointed to represent the Petitioner. If the FPD is unable to represent 13 the Petitioner, because of a conflict of interest or any other reason, alternate 14 counsel will be appointed. Counsel will represent Petitioner in all federal court 15 proceedings relating to this matter, unless allowed to withdraw. 16 It is further ordered that the Clerk of the Court is directed to electronically 17 serve upon the FPD a copy of this order, together with a copy of the Petition for 18 Writ of Habeas Corpus (ECF No. 6). 19 It is further ordered that the FPD will have 30 days from the date of this 20 order to file a notice of appearance, or to indicate to the Court its inability to 21 represent Petitioner in this case. 22 It is further ordered that the Court will set a deadline for payment of the 23 filing fee after counsel appears for Petitioner. 24 It is further ordered that the Clerk of the Court is directed to add Aaron 25 Ford, Attorney General of the State of Nevada, as counsel for Respondents and to 26 provide Respondents an electronic copy of all items previously filed in this case 27 by regenerating the Notice of Electronic Filing to the office of the Attorney General 28 only. 1 It is further ordered that Respondents will have 30 days from the date of 2 || this order to appear in this action. Respondents will not be required to respond 3 || to the habeas petition at this time. 4 DATED THIS 21st day of July, 2023. 5 An jlosed 1m 6 ANNE R. TRAUM 7 UNITED STATES DISTRICT JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28