3 UNITED STATES DISTRICT COURT
4 DISTRICT OF NEVADA
5 * * *
6 EVANS TUTT, Case No. 3:20-cv-00722-MMD-CLB
7 Petitioner, ORDER v. 8 STATE OF NEVADA, et al., 9 Respondents. 10 11 This habeas matter is before the Court for initial review of Petitioner Evans Tutt’s 12 pro se petition for writ of habeas corpus (ECF No. 7 (“Petition”)) under 28 U.S.C. § 2254 13 pursuant to the rules governing § 2254 cases,1 as well as consideration of Petitioner’s 14 motion to stay (ECF No. 1-2) and motion for appointment of counsel (ECF Nos. 1-3, 8). 15 Pursuant to Habeas Rule 4, the assigned judge must examine the habeas petition 16 and order a response unless it “plainly appears” that the petitioner is not entitled to relief. 17 See Valdez v. Montgomery, 918 F.3d 687, 693 (9th Cir. 2019). The rule allows courts to 18 screen and dismiss petitions that are patently frivolous, vague, conclusory, palpably 19 incredible, false, or plagued by procedural defects. See Boyd v. Thompson, 147 F.3d 20 1124, 1128 (9th Cir. 1998). 21 Here, Petitioner challenges a conviction and sentenced imposed by the Eighth 22 Judicial District Court for Clark County (“state court”). See State of Nevada v. Tutt, Case 23 No. C-14-299030-1.2 A jury found Petitioner guilty of first degree kidnapping with use of 24
25 1All references to a “Habeas Rule” or the “Habeas Rules” in this order identify the rules governing § 2254 cases in the United States District Courts. 26
27 2The Court takes judicial notice of the online docket records of the Eighth Judicial District Court and Nevada appellate courts, which may be accessed by the public online 28 at: www.clarkcountycourts.us and http://caseinfo.nvsupremecourt.us/public/caseSearch.do. 1 a deadly weapon resulting in substantial bodily harm, battery with use of a deadly weapon 2 resulting in substantial bodily harm constituting domestic violence, coercion (without 3 force), and child abuse, neglect, or endangerment. The state district court entered a 4 judgment of conviction on October 15, 2015 and sentenced Petitioner to life without the 5 possibility of parole plus a consecutive term of 72 to 180 months for the use of a deadly 6 weapon, a consecutive term of 72 to 180 months, and a consecutive term of 28 to 72 7 months. The Nevada Court of Appeals affirmed Petitioner’s judgment of conviction. 8 On August 4, 2017, Petitioner filed a state habeas petition for writ of habeas corpus 9 (“state petition”) seeking post-conviction relief. The state district court denied the state 10 petition and the Nevada Court of Appeals reversed and remanded for the appointment of 11 counsel to assist Petitioner. The state district court again denied his state petition and the 12 Nevada Supreme Court affirmed. A remittitur issued on October 19, 2020. Petitioner 13 initiated this case on December 30, 2020, by filing a petition for writ of habeas corpus 14 (ECF No. 1-1). Having conducted an initial review, the Court will direct service of the 15 Petition. 16 I. MOTION FOR APPOINTMENT OF COUNSEL 17 There is no constitutional right to appointed counsel in a federal habeas corpus 18 proceeding. Luna v. Kernan, 784 F.3d 640, 642 (9th Cir. 2015) (citing Lawrence v. Florida, 19 549 U.S. 327, 336-37 (2007)). Under the Criminal Justice Act (“CJA”), 18 U.S.C. § 3006A, 20 an indigent petitioner may request appointed counsel to pursue habeas relief. Id. 21 (a)(2)(B). The decision to appoint counsel is generally discretionary. Id. (a)(2) (authorizing 22 appointment of counsel “when the interests of justice so require”). However, counsel must 23 be appointed if the complexities of the case are such that denial of counsel would amount 24 to a denial of due process, and where the petitioner is so uneducated that he is incapable 25 of fairly presenting his claims. LaMere v. Risley, 827 F.2d 622, 626 (9th Cir. 1987). 26 Petitioner used a prison form to request counsel and provides specific facts 27 indicating that a denial of counsel would amount to a denial of due process. Petitioner 28 represents that he has tumors in his neck that require weekly chemotherapy treatment, 1 he is in “constant pain,” and receives oxycodone twice daily. (ECF No. 8 at 3.) 2 Additionally, he reports that he has “a psychological history of hearing voices, and was 3 diagnosed & given meds for it in 2011.” (Id.) Based on these exceptional circumstances 4 and the complexities of his claims, he asks the Court for appointed counsel. Given 5 Petitioner’s medical and mental health issues, lengthy sentence, and the complex 6 procedural obstacles Petitioner’s situation may present, the Court is persuaded that the 7 interests of justice require the appointment of counsel. The CJA requires that a petitioner 8 demonstrate financial eligibility in all circumstances where the court appoints counsel. 9 See 18 U.S.C. § 3006A(a)(1).3 Although the Court denied Petitioner’s IFP application 10 based on the amount of money in his inmate trust account and average monthly deposits, 11 his ability to pay the $5.00 filing fee does not show that he can afford counsel to litigate 12 this case. For the purposes of appointing counsel under the CJA, the Court finds that 13 Petitioner’s IFP application sufficiently demonstrates financial eligibility. The motion for 14 appointment of counsel is thus granted. 15 II. MOTION FOR STAY 16 A district court is authorized to stay an unexhausted petition in “limited 17 circumstances,” to allow a petitioner to present unexhausted claims to the state court 18 without losing his right to federal habeas review due to the relevant one-year statute of 19 limitations. Rhines v. Weber, 544 U.S. 269, 273-75 (2005); Mena v. Long, 813 F.3d 907, 20 912 (9th Cir. 2016) (holding that district courts have authority to stay and hold in 21 abeyance both mixed petitions and “fully unexhausted petitions under the circumstances 22 set forth in Rhines”). Under the Rhines test, “a district court must stay a mixed petition 23 only if: (1) the petitioner has ‘good cause’ for his failure to exhaust his claims in state 24 3A petitioner must maintain financial eligibility during the entire representation: 25 If at any time after the appointment of counsel the United States magistrate judge or the court finds that the person is financially able to obtain counsel 26 or to make partial payment for the representation, it may terminate the 27 appointment of counsel or authorize payment as provided in subsection (f), as the interests of justice may dictate…. 28 1 court; (2) the unexhausted claims are potentially meritorious; and (3) there is no indication 2 that the petitioner intentionally engaged in dilatory litigation tactics.” Wooten v. Kirkland, 3 540 F.3d 1019, 1023 (9th Cir. 2008) (citing Rhines, 544 U.S. at 278). 4 The Ninth Circuit has acknowledged that the Rhines “good cause” standard does 5 not require “extraordinary circumstances.” Wooten, 540 F.3d at 1024 (citing Jackson v. 6 Roe, 425 F.3d 654, 661-62 (9th Cir. 2005)).
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3 UNITED STATES DISTRICT COURT
4 DISTRICT OF NEVADA
5 * * *
6 EVANS TUTT, Case No. 3:20-cv-00722-MMD-CLB
7 Petitioner, ORDER v. 8 STATE OF NEVADA, et al., 9 Respondents. 10 11 This habeas matter is before the Court for initial review of Petitioner Evans Tutt’s 12 pro se petition for writ of habeas corpus (ECF No. 7 (“Petition”)) under 28 U.S.C. § 2254 13 pursuant to the rules governing § 2254 cases,1 as well as consideration of Petitioner’s 14 motion to stay (ECF No. 1-2) and motion for appointment of counsel (ECF Nos. 1-3, 8). 15 Pursuant to Habeas Rule 4, the assigned judge must examine the habeas petition 16 and order a response unless it “plainly appears” that the petitioner is not entitled to relief. 17 See Valdez v. Montgomery, 918 F.3d 687, 693 (9th Cir. 2019). The rule allows courts to 18 screen and dismiss petitions that are patently frivolous, vague, conclusory, palpably 19 incredible, false, or plagued by procedural defects. See Boyd v. Thompson, 147 F.3d 20 1124, 1128 (9th Cir. 1998). 21 Here, Petitioner challenges a conviction and sentenced imposed by the Eighth 22 Judicial District Court for Clark County (“state court”). See State of Nevada v. Tutt, Case 23 No. C-14-299030-1.2 A jury found Petitioner guilty of first degree kidnapping with use of 24
25 1All references to a “Habeas Rule” or the “Habeas Rules” in this order identify the rules governing § 2254 cases in the United States District Courts. 26
27 2The Court takes judicial notice of the online docket records of the Eighth Judicial District Court and Nevada appellate courts, which may be accessed by the public online 28 at: www.clarkcountycourts.us and http://caseinfo.nvsupremecourt.us/public/caseSearch.do. 1 a deadly weapon resulting in substantial bodily harm, battery with use of a deadly weapon 2 resulting in substantial bodily harm constituting domestic violence, coercion (without 3 force), and child abuse, neglect, or endangerment. The state district court entered a 4 judgment of conviction on October 15, 2015 and sentenced Petitioner to life without the 5 possibility of parole plus a consecutive term of 72 to 180 months for the use of a deadly 6 weapon, a consecutive term of 72 to 180 months, and a consecutive term of 28 to 72 7 months. The Nevada Court of Appeals affirmed Petitioner’s judgment of conviction. 8 On August 4, 2017, Petitioner filed a state habeas petition for writ of habeas corpus 9 (“state petition”) seeking post-conviction relief. The state district court denied the state 10 petition and the Nevada Court of Appeals reversed and remanded for the appointment of 11 counsel to assist Petitioner. The state district court again denied his state petition and the 12 Nevada Supreme Court affirmed. A remittitur issued on October 19, 2020. Petitioner 13 initiated this case on December 30, 2020, by filing a petition for writ of habeas corpus 14 (ECF No. 1-1). Having conducted an initial review, the Court will direct service of the 15 Petition. 16 I. MOTION FOR APPOINTMENT OF COUNSEL 17 There is no constitutional right to appointed counsel in a federal habeas corpus 18 proceeding. Luna v. Kernan, 784 F.3d 640, 642 (9th Cir. 2015) (citing Lawrence v. Florida, 19 549 U.S. 327, 336-37 (2007)). Under the Criminal Justice Act (“CJA”), 18 U.S.C. § 3006A, 20 an indigent petitioner may request appointed counsel to pursue habeas relief. Id. 21 (a)(2)(B). The decision to appoint counsel is generally discretionary. Id. (a)(2) (authorizing 22 appointment of counsel “when the interests of justice so require”). However, counsel must 23 be appointed if the complexities of the case are such that denial of counsel would amount 24 to a denial of due process, and where the petitioner is so uneducated that he is incapable 25 of fairly presenting his claims. LaMere v. Risley, 827 F.2d 622, 626 (9th Cir. 1987). 26 Petitioner used a prison form to request counsel and provides specific facts 27 indicating that a denial of counsel would amount to a denial of due process. Petitioner 28 represents that he has tumors in his neck that require weekly chemotherapy treatment, 1 he is in “constant pain,” and receives oxycodone twice daily. (ECF No. 8 at 3.) 2 Additionally, he reports that he has “a psychological history of hearing voices, and was 3 diagnosed & given meds for it in 2011.” (Id.) Based on these exceptional circumstances 4 and the complexities of his claims, he asks the Court for appointed counsel. Given 5 Petitioner’s medical and mental health issues, lengthy sentence, and the complex 6 procedural obstacles Petitioner’s situation may present, the Court is persuaded that the 7 interests of justice require the appointment of counsel. The CJA requires that a petitioner 8 demonstrate financial eligibility in all circumstances where the court appoints counsel. 9 See 18 U.S.C. § 3006A(a)(1).3 Although the Court denied Petitioner’s IFP application 10 based on the amount of money in his inmate trust account and average monthly deposits, 11 his ability to pay the $5.00 filing fee does not show that he can afford counsel to litigate 12 this case. For the purposes of appointing counsel under the CJA, the Court finds that 13 Petitioner’s IFP application sufficiently demonstrates financial eligibility. The motion for 14 appointment of counsel is thus granted. 15 II. MOTION FOR STAY 16 A district court is authorized to stay an unexhausted petition in “limited 17 circumstances,” to allow a petitioner to present unexhausted claims to the state court 18 without losing his right to federal habeas review due to the relevant one-year statute of 19 limitations. Rhines v. Weber, 544 U.S. 269, 273-75 (2005); Mena v. Long, 813 F.3d 907, 20 912 (9th Cir. 2016) (holding that district courts have authority to stay and hold in 21 abeyance both mixed petitions and “fully unexhausted petitions under the circumstances 22 set forth in Rhines”). Under the Rhines test, “a district court must stay a mixed petition 23 only if: (1) the petitioner has ‘good cause’ for his failure to exhaust his claims in state 24 3A petitioner must maintain financial eligibility during the entire representation: 25 If at any time after the appointment of counsel the United States magistrate judge or the court finds that the person is financially able to obtain counsel 26 or to make partial payment for the representation, it may terminate the 27 appointment of counsel or authorize payment as provided in subsection (f), as the interests of justice may dictate…. 28 1 court; (2) the unexhausted claims are potentially meritorious; and (3) there is no indication 2 that the petitioner intentionally engaged in dilatory litigation tactics.” Wooten v. Kirkland, 3 540 F.3d 1019, 1023 (9th Cir. 2008) (citing Rhines, 544 U.S. at 278). 4 The Ninth Circuit has acknowledged that the Rhines “good cause” standard does 5 not require “extraordinary circumstances.” Wooten, 540 F.3d at 1024 (citing Jackson v. 6 Roe, 425 F.3d 654, 661-62 (9th Cir. 2005)). But courts “must interpret whether a petitioner 7 has ‘good cause’ for a failure to exhaust in light of the Supreme Court’s instruction 8 in Rhines that the district court should only stay mixed petitions in ‘limited 9 circumstances’.” Wooten, 540 F.3d at 1024 (citing Jackson, 425 F.3d at 661). Courts 10 must also “be mindful that AEDPA aims to encourage the finality of sentences and to 11 encourage petitioners to exhaust their claims in state court before filing in federal court.” 12 Wooten, 540 F.3d at 1024 (citing Rhines, 544 U.S. at 276-77). A “mixed” petition—one 13 presenting both exhausted and unexhausted claims—may be dismissed without 14 prejudice or amended to delete unexhausted claims. Rose v. Lundy, 455 U.S. 509, 520 15 (1982). 16 Here, although Petitioner cites Rhines in his motion, he does not address the 17 Rhines factors. He requests the stay “to present any unexhausted claims to the state 18 court,” and provides that “the Nevada Supreme Court declined to address issues I 19 submitted in my pro se supplemental brief stating they were not exhausted in the lower 20 courts.” (ECF No. 1-2 at 2.) Although Petitioner provides that he has not satisfied the 21 exhaustion requirement, he does not demonstrate good cause for his failure to exhaust 22 the claims. Petitioner also fails to address the second and third Rhines factors. He must 23 demonstrate that his unexhausted claims are potentially meritorious and he has not 24 intentionally engaged in dilatory litigation tactics. Accordingly, the motion for stay is 25 denied without prejudice. 26 It is therefore ordered that Petitioner’s Motion to Stay Habeas Petition (ECF No. 1- 27 2) is denied without prejudice. 28 It is further ordered that Petitioner’s Motion for Appointment of Counsel (ECF 1 Nos. 1-3, 8) is granted. 2 The Federal Public Defender is provisionally appointed as counsel and will have 3 30 days to undertake direct representation of Petitioner or to indicate the office’s inability 4 to represent Petitioner in these proceedings. If the Federal Public Defender is unable to 5 represent Petitioner, the Court will appoint alternate counsel. The counsel appointed will 6 represent Petitioner in all federal proceedings related to this matter, including any appeals 7 or certiorari proceedings, unless allowed to withdraw. A deadline for the filing of an 8 amended petition and/or seeking other relief will be set after counsel has entered an 9 appearance. The Court anticipates a deadline of approximately 90 days from entry of the 10 formal order of appointment. 11 It is further ordered that any deadline established and/or any extension thereof will 12 not signify any implied finding of a basis for tolling during the time period established. 13 Petitioner at all times remains responsible for calculating the running of the federal 14 limitation period and timely presenting claims. That is, by setting a deadline to amend the 15 petition and/or by granting any extension thereof, the Court makes no finding or 16 representation that the petition, any amendments thereto, and/or any claims contained 17 therein are not subject to dismissal as untimely. See Sossa v. Diaz, 729 F.3d 1225, 1235 18 (9th Cir. 2013). 19 The Clerk of Court is directed to add Nevada Attorney General Aaron D. Ford as 20 counsel for Respondents and electronically serve the Nevada Attorney General with a 21 copy of the petition. Respondents’ counsel must enter a notice of appearance within 21 22 days of entry of this order, but no further response will be required from Respondents 23 until further order of the Court. 24 /// 25 /// 26 /// 27 /// 28 /// 1 The Clerk of Court is further directed to send a copy of this order to the pro se 2 || petitioner, the Nevada Attorney General, the Federal Public Defender, and the CJA 3 || Coordinator for this division. 4 DATED THIS 4" Day of June 2021. 5 —
7 MIRANDA M. DU CHIEF UNITED STATES DISTRICT JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28