Moncada v. Perry

• Court: District Court, D. Nevada
• Decided: November 1, 2019
• Docket: 3:19-cv-00231
• Status: Unknown

Opinion

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 * * *

6 JONATHAN MONCADA, Case No. 3:19-cv-00231-MMD-CBC

7 Petitioner, ORDER v. 8 RUSSELL PERRY, et al., 9 Respondents. 10 11 On June 24, 2019, the Court reviewed Petitioner Jonathan Moncada’s 28 U.S.C. 12 § 2254 habeas corpus petition and directed the Clerk to file and serve the petition. (ECF 13 No. 3.) The Court also denied his motion for appointment of counsel. (Id.) 14 On September 20, 2019, Respondents filed a motion for clarification (ECF No. 7). 15 Respondents inform the Court that Moncada entered into a global plea agreement on two 16 cases (which Respondents refer to as Case A and Case B).1 The cases at times 17 proceeded on similar tracks in state court, but at times diverged. Case A and Case B 18 were docketed as separate cases on appeal, but Moncada later filed one state 19 postconviction petition for both cases. Respondents seek clarification as to whether they 20 should address both cases in one responsive pleading. 21 After Respondents filed their motion, Moncada filed a motion for reconsideration 22 of this court’s denial of his motion for counsel. (ECF No. 14.) As the Court explained 23 previously, the decision to appoint counsel is generally discretionary. See Chaney v. 24 Lewis, 801 F.2d 1191, 1196 (9th Cir.1986), cert. denied, 481 U.S. 1023 (1987); Bashor 25 v. Risley, 730 F.2d 1228, 1234 (9th Cir.), cert. denied, 469 U.S. 838 (1984). However, 26 there may be complexities in this case that warrant appointment of counsel in order to 27 1 ensure due process. See Chaney, 801 F.2d at 1196; see also Hawkins v. Bennett, 423 2 F.2d 948 (8th Cir.1970). Notably, Respondents filed a notice of their non-opposition to 3 reconsideration of the denial of counsel. (ECF No. 15.) In light of these two motions, the 4 Court grants the motion to reconsider its order denying the motion for appointment of 5 counsel. 6 It is therefore ordered that Petitioner’s motion for reconsideration (ECF No. 14) is 7 granted. This Court’s order dated June 24, 2019 is vacated. 8 It is further ordered that Petitioner’s motion for appointment of counsel (ECF No. 9 5) is granted. 10 It is further ordered that the Federal Public Defender for the District of Nevada 11 (“FPD”) is appointed to represent Petitioner. 12 It is further ordered that the Clerk of Court electronically serve the FPD a copy of 13 this order, together with a copy of the petition for writ of habeas corpus (ECF No. 4). 14 The FPD will have 30 days from the date of entry of this order to file a notice of 15 appearance, or to indicate to the Court its inability to represent Petitioner in these 16 proceedings. 17 It is further ordered that after counsel has appeared for Petitioner in this case, the 18 court will issue a scheduling order, which will, among other things, set a deadline for the 19 filing of an amended petition. 20 It is further ordered that Respondents’ motion for clarification (ECF No. 7) is denied 21 without prejudice as moot. 22 It is further ordered that Respondents’ motion for leave to file presentence report 23 under seal (ECF No. 11) is granted. 24 DATED THIS 1st day of November 2019. 25 26 MIRANDA M. DU, CHIEF JUDGE UNITED STATES DISTRICT COURT 27