Holman v. Johnson

• Court: District Court, D. Nevada
• Decided: June 8, 2022
• Docket: 2:21-cv-00266
• Status: Unknown

Opinion

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 JERRY HOLMAN, Case No.: 2:21-cv-00266-APG-NJK

4 Petitioner Order 5 v.

6 CALVIN JOHNSON, et al.,

7 Respondents.

8 9 Petitioner Jerry Holman has filed a motion for appointment of counsel. ECF No. 15). In 10 order to ensure due process, I grant the motion. 11 There is no constitutional right to appointed counsel in a federal habeas corpus 12 proceeding. Luna v. Kernan, 784 F.3d 640, 642 (9th Cir. 2015) (citing Lawrence v. Florida, 549 13 U.S. 327, 336–37 (2007)). An indigent petitioner may request appointed counsel to pursue 14 habeas relief. 18 U.S.C. § 3006A(a)(2)(B). The decision to appoint counsel is generally 15 discretionary. Id. § 3006A(a)(2) (authorizing appointment of counsel “when the interests of 16 justice so require”). However, counsel is appropriate if the complexities of the case are such that 17 denial of counsel would amount to a denial of due process, and where the petitioner is so 18 uneducated that he is incapable of fairly presenting his claims. LaMere v. Risley, 827 F.2d 622, 19 626 (9th Cir. 1987); Brown v. United States, 623 F.2d 54, 61 (9th Cir. 1980). 20 Holman was convicted by a jury of first-degree murder and sentenced to life without the 21 possibility of parole. He was about 21 years-old at the time of the crime. It appears that some of 22 the legal issues may be complex. In order to ensure due process, I grant Holman’s motion for 23 counsel. 1 The respondents have moved to dismiss the petition. ECF No. 27. Because I am 2 appointing counsel, I deny the motion to dismiss without prejudice to renewing the motion after 3 an amended petition is filed. 4 The respondents also moved for leave to file an exhibit under seal. ECF No. 29. While

5 there is a presumption favoring public access to judicial filings and documents, a party seeking to 6 seal a judicial record may overcome the presumption by demonstrating “compelling reasons” 7 that outweigh the public policies favoring disclosure. Kamakana v. City and County of Honolulu, 8 447 F.3d 1172, 1178-79 (9th Cir. 2006) (simplified). In general, “compelling reasons” exist 9 where the records may be used for improper purposes. Id. at 1179. Here, the respondents seek to 10 file Holman’s presentence investigation report (PSI) under seal because it is confidential under 11 state law and contains Holman’s identifiers and his social security number. ECF No. 29. The 12 respondents have demonstrated compelling reasons to file the PSI under seal.1 0 13 I THEREFORE ORDER that the petitioner’s motion for appointment of counsel (ECF 14 No. 15) is GRANTED. 15 I FURTHER ORDER that the Federal Public Defender for the District of Nevada (FPD) 16 is appointed to represent the petitioner. 17 I FURTHER ORDER the Clerk of Court to ELECTRONICALLY SERVE on the FPD 18 a copy of this order, together with a copy of the amended petition for writ of habeas corpus (ECF 19 No. 9). The FPD has until July 13, 2022 to file a notice of appearance or to indicate to the court 20 its inability to represent the petitioner in these proceedings. 21 22

1 While I deny the motion to dismiss without prejudice, I anticipate that any renewed motion to 23 dismiss will be supported at least in part by the exhibits that the respondents have already filed. Thus, it is appropriate to file the PSI under seal at this time. ] I FURTHER ORDER that after counsel has appeared for the petitioner in this case, the court will issue a scheduling order, which will include a deadline for an amended petition. 3 I FURTHER ORDER that the respondents’ motion to dismiss (ECF No. 27) is DENIED without prejudice. 5 I FURTHER ORDER that the respondents’ motion for leave to file exhibit under seal 6|| (ECF No. 29) is GRANTED. 7 Dated: June 8, 2022 8 US. District Judge Andrew P. Gordon 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23