Sterling Atkins, Jr. v. James Dzurenda, Director, Nevada Department of Corrections, et al.

• Court: District Court, D. Nevada
• Decided: April 29, 2026
• Docket: 3:21-cv-00176
• Status: Unknown

Opinion

2 3 4 5 6 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 7 Sterling Atkins, Jr., 8 Case No. 3:21-CV-00176-RFB-CLB Plaintiff, 9 ORDER GRANTING ATKINS' v. UNOPPOSED MOTION FOR 10 APPOINTMENT OF COUNSEL James Dzurenda, Director, Nevada 11 Department of Corrections, et al., [ECF No. 370] 12 Defendants. 13 14 15 16 17 18 19 20 21 22 23 1 Plaintiff Sterling Atkins, Jr. respectfully moves for appointment of counsel

2 in this action. On April 15, 2026, Clark County District Attorney Steve Wolfson 3 announced that his office is planning on seeking an execution warrant for Mr. 4 Atkins, and that the Nevada Department of Corrections “has multiple options for 5 obtaining lethal injection drugs.” (See ECF No. 365 Ex. 1). On April 24, 2026 Mr. 6 Atkins moved for leave to intervene as a plaintiff pursuant to Rule 24 of the 7 Federal Rules of Civil Procedure. (ECF No. 365). Mr. Atkins claims an interest in 8 this litigation in that he is a person situated similarly to the plaintiffs, Zane 9 Michael Floyd and Robert Ybarra, Jr., and may be subjected to the same defective 10 execution procedures devised and implemented by the Defendants in violation of 11 the Eighth and Fourteenth Amendments. In support of this motion, Mr. Atkins 12 states the following: 13 1. Mr. Atkins is indigent and has proceeded in forma pauperis in all courts to 14 date, state and federal, in his capital case proceedings. These proceedings include 15 the trial court, Dept. XI, Clark County, Nevada (State v. Atkins, No. C120438); the 16 Nevada Supreme Court (Atkins v. State, 112 Nev. 1122, 923 P.2d 1119 (1996); the 17 Eighth Judicial District Court of Nevada (Atkins v. Nevada, C120438); this court, 18 the United States District Court for the District of Nevada (Atkins v.Baker, No. 19 2:02-cv-1348); the Ninth Circuit Court of Appeals (Atkins v. Bean, 122 F.4th 760 20 (9th Cir. 2024) and the United State Supreme Court. (Atkins v. Bean, No. 24-7302 21 22 (cert. denied, Oct. 24, 2025)).1 1 The procedural history of Mr. Atkins’ case is summarized in his motion to 23 intervene, ECF No. 365 at 2-3, and need not be repeated here. 1 2. Mr. Atkin’s interest in this litigation cannot be protected or represented

2 adequately unless he is allowed to intervene as a plaintiff. Accordingly, Mr. Atkins 3 submits he is entitled to intervene in this action as of right pursuant to Fed. R. Civ. 4 P. 24(a)(2). (ECF No. 365). 5 3. Mr. Atkins has challenged his conviction and death sentence in federal 6 court with his petition for writ of habeas corpus under 28 U.S.C. § 2254. 7 Undersigned counsel was appointed to represent Mr. Atkins in the U. S. District 8 Court for the District of Nevada, under 18 U.S.C. § 3599, on July 28, 2015 (ECF No. 9 162) and the appointment was accepted on August 5, 2015. (Atkins v. Baker, No.

10 2:02-cv-1348, ECF Nos. 162, 165). Undersigned counsel has represented Mr. Atkins 11 in that court; the Ninth Circuit Court of Appeals; and the United States Supreme 12 Court. Undersigned counsel has not represented Mr. Atkins in state court. 13 4. Sec. 3599 requires a federal court to provide a death-sentenced prisoner 14 with representation for proceedings challenging a death sentence brought under 28 15 U.S.C. § 2254 and “throughout every subsequent state of available judicial 16 proceedings” including “applications for stays of execution and...clemency.” See also 17 Harbison v. Bell, 556 U.S. 180 (2009). 18 5. Any requirement of “actual injury,” Lewis v. Casey, 518 U.S. 343, 352-356

19 (1996) as a result of the non-appointment of counsel is easily shown. With a life at 20 stake, and an execution date-setting pending, counsel proceeding pro bono cannot 21 adequately perform needed tasks, aside from the statutorily-defined “applications 22 for stays of execution and...clemency” in this on-going lawsuit.2 23 2 T he other plaintiffs are represented by the Federal Public Defender. 1 6. These factors strongly indicate that appointment of undersigned counsel

2 would be in the interests of justice. Mr. Atkins is in agreement with this motion. 3 Scope Of The Requested Appointment. 4 7. As discussed supra, undersigned is appointed federal counsel under § 3599 5 which specifies applications for stays of execution and clemency proceedings. Any 6 future proceedings, such as the currently pending challenge to the lethal injection 7 protocol, may not be covered under § 3599. 8 8. Undersigned counsel seeks the appointment for any subsequent federal 9 court proceedings and motions, including any subsequent proceedings in this Court.

10 Clemency proceedings and applications for stays of execution are presumably 11 covered by the undersigned’s current federal appointment. Of course, any request 12 for attorney fees would be subject to scrutiny as to appropriateness and 13 reasonableness of the fee request, as with any other appointment of counsel or 14 funding request presented to this Court. 15 Counsel for defendants and the party plaintiffs are unopposed to this motion. 16 WHEREFORE, Plaintiff Sterling Atkins Jr. respectfully requests that this 17 Honorable Court appoint A. Richard Ellis to represent him in this matter. 18 DATED: April 28, 2026.

19 Respectfully submitted, A. Richard Ellis 20 Nevada Bar No. 4593 105 Quarry Road 21 Mill Valley, CA 94941 Phone: (415) 389-6771 22 Fax: (415) 389-0251 E-Mail: a.r.ellis@att.net 23 IT IS SO ORDERED. DATED: April29, 2026, 1 ‘ 2 3 UNITER STATES MAGISTRATE JUDGE 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23