Hudson v. State of Nevada

• Court: District Court, D. Nevada
• Decided: May 4, 2023
• Docket: 3:23-cv-00080
• Status: Unknown

Opinion

1 UNITED STATES DISTRICT COURT

2 DISTRICT OF NEVADA

3 JOE E. HUDSON, Case No. 3:23-cv-00080-ART-CSD

4 Petitioner, ORDER v. 5 NETHANJAH BREITENBACH, 6 Respondents. 7 8 Pro se Petitioner Joe E. Hudson has filed a Petition for Writ of Habeas 9 Corpus under 28 U.S.C. § 2254. (ECF No. 5 (“Petition”).) This matter comes before 10 the court for initial review under the Rules Governing Section 2254 Cases 11 (“Habeas Rules”). For the reasons discussed below, the court directs service of 12 the Petition and sua sponte raises the issue of counsel. 13 I. BACKGROUND1 14 Hudson challenges a conviction and sentence imposed by the Eighth 15 Judicial District Court for Clark County (“state court”). State of Nevada v. Joe 16 Hudson, Case No. C-14-302774-1. The state court entered a judgment of 17 conviction on August 3, 2015, pursuant to a jury trial, for battery with the use of 18 a deadly weapon constituting domestic violence, battery with the use of a deadly 19 weapon, and battery constituting domestic violence (strangulation). Hudson 20 appealed, and on January 23, 2017, the Nevada Court of Appeals reversed and 21 remanded based on Hudson’s invalid waiver of his constitutional right to counsel. 22 Joe Edward Hudson v. The State of Nevada, No. 68574. Hudson was retried, and 23 a jury found Hudson guilty of battery with the use of a deadly weapon. A first 24 amended judgment of conviction, second amended judgment of conviction, third 25 amended judgment of conviction, and fourth amended judgment of conviction

26 1 The court takes judicial notice of the online docket records of the Eighth Judicial 27 District Court and Nevada appellate courts. These docket records may be accessed at https://www.clarkcountycourts.us/Anonymous/default.aspx and 28 http://caseinfo.nvsupremecourt.us/public/caseSearch.do. 1 were entered on February 14, 2020, March 25, 2020, April 24, 2020, and April 2 28, 2020, respectively, adjudicating Hudson under the large habitual criminal 3 statute and sentencing him to life in prison without the possibility of parole. 4 Hudson appealed, and the Nevada Court of Appeals affirmed on February 17, 5 2021. Joe Edward Hudson v. The State of Nevada, No. 80784-COA. 6 Hudson filed a state petition for writ of habeas corpus on February 9, 2022. 7 Joe Hudson v. Perry Russell, A-22-848010-W. On May 20, 2022, the state court 8 denied the petition. Hudson appealed, and the Nevada Court of Appeals affirmed 9 on February 14, 2023. Joe Edward Hudson v. The State of Nevada, No. 84810- 10 COA. 11 Hudson initiated this action by filing a motion for extension of time to file 12 a motion to vacate or correct his sentence. (ECF No. 1.) On March 24, 2023, the 13 court instructed Hudson to file an in forma pauperis (“IFP”) application or pay the 14 filing fee and file a habeas corpus petition. (ECF No. 3.) Hudson filed an IFP 15 application and his Petition on May 2, 2023. (ECF Nos. 4, 5.) 16 II. DISCUSSION 17 Habeas Rule 4 requires this court to examine the Petition and order a 18 response unless it “plainly appears” that the Petition is not entitled to relief. See 19 Valdez v. Montgomery, 918 F.3d 687, 693 (9th Cir. 2019). This rule allows courts 20 to screen and dismiss petitions that are patently frivolous, vague, conclusory, 21 palpably incredible, false, or plagued by procedural defects. Boyd v. Thompson, 22 147 F.3d 1124, 1128 (9th Cir. 1998); Hendricks v. Vasquez, 908 F.2d 490, 491 23 (9th Cir. 1990) (collecting cases). A response is warranted in the instant case.2 24 Further, it appears that counsel may be helpful in this case. The Criminal 25 Justice Act authorizes the court to appoint counsel “when the interests of justice 26 so require.” 18 U.S.C. § 3006A(a)(2). Although this court finds that the 27 2 The Court notes—but does not decide—that it appears that Hudson’s AEDPA 28 limitation period expires on or about June 22, 2023. 1 || appointment of counsel is in the interests of justice given the complexities of this 2 || case and Hudson’s sentence to life without the possibility of parole, this court is 3 || cognizant of the fact that Hudson has not moved for the appointment of counsel. 4 || As such, this court gives Hudson 30 days to file a motion for the appointment of 5 |} counsel. If Hudson does not file a motion for the appointment of counsel within 6 || 30 days, the court will not appoint counsel and will issue a scheduling order on 7 || the Petition. 8 III. CONCLUSION 9 It is therefore ordered that the application to proceed in forma pauperis 10 || (ECF No. 4) is granted. 11 It is further ordered that the clerk (1) add Aaron Ford, Attorney General of 12 || the State of Nevada, as counsel for respondents, (2) electronically serve 13 || respondents’ counsel a copy of the Petition (ECF No. 5), and (3) electronically 14 || provide respondents’ counsel a copy of this order and copies of all other items 15 || previously filed in this case by regenerating the Notices of Electronic Filing. 16 || Respondents’ counsel must enter a notice of appearance within 21 days of entry 17 || of this order, but no further response will be required until further order. 18 It is further ordered that Hudson file a motion for the appointment of 19 || counsel within 30 days if he desires that counsel be appointed to represent him. 20 || If Hudson does not file a motion for the appointment of counsel within 30 days, 21 || the court will not appoint counsel for Hudson and will issue a scheduling order 22 || on the Petition. 23 DATED THIS 4th day of May 2023. 24 25 en 26 Aras / 27 ANNE R. TRAUM UNITED STATES DISTRICT JUDGE 28