Smith v. State of Nevada

Opinion

1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA

5 Charles Smith, Case No.: 2:20-cv-01781-RFB-VCF

6 Petitioner, Order 7 v.

8 William Hutchings, et al.,

9 Respondents.

11 This action is a petition for writ of habeas corpus under 28 U.S.C. § 2254 brought by 12 Charles Smuth, a Nevada prisoner who is serving an aggregate sentence of 35 years with a 13 minimum of 14 years before parole eligibility. ECF No. 1-1. This court previously ordered him to 14 pay the $5.00 filing fee to initiate this action and to file an amended habeas petition on the court’s 15 approved form. ECF No. 3. 16 Smith has paid the filing fee, so his initial petition (ECF No. 1-1) and motion for 17 appointment of counsel (ECF No. 1-2) will be filed by the Clerk. Instead of filing an amended 18 petition, however, Smith filed a motion to stay this case in order to exhaust his state court remedies 19 before proceeding herein. ECF No. 6. Finding that appointment of counsel is warranted, the court 20 will grant petitioner’s motion for appointment and deny his motion to stay without prejudice. 21 “Indigent state prisoners applying for habeas corpus relief are not entitled to appointed 22 counsel unless the circumstances of a particular case indicate that appointed counsel is necessary 23 to prevent due process violations.” Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986) (citing 1 Kreiling v. Field, 431 F.2d 638, 640 (9th Cir. 1970) (per curiam). The court may, however, appoint 2 counsel at any stage of the proceedings “if the interests of justice so require.” See 18 U.S.C. § 3 3006A; see also Rule 8(c), Rules Governing § 2254 Cases; Chaney, 801 F.2d at 1196. It appears 4 likely that there will be relatively complex issues to be addressed at the outset of this case, and it

5 appears that Smith may not be able to adequately litigate those issues without counsel. Therefore, 6 the court finds that appointment of counsel is in the interests of justice. 7 IT IS THEREFORE ORDERED that the Clerk of Court shall file the petition for writ of 8 habeas corpus (ECF No. 1-1) and motion for appointment of counsel (ECF No. 1-2) attached to 9 petitioner’s motion to proceed in forma pauperis. 10 IT IS FURTHER ORDERED that the Clerk is directed to add Aaron Ford, Attorney 11 General of the State of Nevada, as counsel for respondents and to provide respondents an electronic 12 copy of all items previously filed in this case by regenerating the Notice of Electronic Filing to the 13 office of the Attorney General only. 14 IT IS FURTHER ORDERED that respondents shall have 20 days from the date on which

15 the petition is served upon them to appear in this action. Respondents will not be required to 16 respond to the habeas petition at this time. 17 IT IS FURTHER ORDERED that petitioner’s motion for appointment of counsel is 18 GRANTED. The Federal Public Defender for the District of Nevada (FPD) is appointed to 19 represent petitioner. If the FPD is unable to represent the petitioner, due to a conflict of interest or 20 other reason, then alternate counsel will be appointed. In either case, counsel will represent the 21 petitioner in all federal-court proceedings relating to this matter, unless allowed to withdraw. 22 IT IS FURTHER ORDERED that the Clerk shall ELECTRONICALLY SERVE upon the 23 FPD a copy of this order, together with a copy of the petition for writ of habeas corpus. 1 IT IS FURTHER ORDERED that the FPD shall have 20 days from the date of entry of this order to file a notice of appearance, or to indicate to the court its inability to represent the petitioner in this case. 4 IT IS FURTHER ORDERED that the court will establish a schedule for further 5|| proceedings after counsel appear for the petitioner and the respondents. 6 IT IS FURTHER ORDERED that petitioner’s motion to stay (ECF No. 6) is DENIED without prejudice. 8 Dated: January 11, 2021 anor

RICHAR QF. BQULWy RE, II 10 United State*BrstrretTudge 11 12 13 14 15 16 17 18 19 20 21 22 23