Wilson v. State of Nevada

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA JEFFREY WILSON, Case No.2:19-cv-00549-JAD-DJA 5 Petitioner, v. Order Granting Motion to Appoint 6 Counsel and Motion to Seal,and Denying JERRY HOWELL,et al., Motions to Dismiss and Extend Time Respondents. [ECF Nos.21,22,24, 25, 26] 10 Pro sepetitioner and Nevada state prisoner Jeffrey Wilsonbrings this petition for writ of habeas corpus1 pursuant to 28 U.S.C. §2254to challenge his 2013 conviction for second degree murder with use of a deadly weapon and attemptedmurder. He moves for appointment of counsel and an extension of time to oppose Respondents’ motion to dismiss.2 Having reviewed the parties’ submissions and the procedural history of Wilson’s criminal case, post-conviction proceedings, and appeals, I conclude that the just course is to appoint counsel and grant Wilson’s motion. Ithus denyRespondents’ motion to dismiss without prejudice to its reassertion and the presentation of all applicable defenses following the filing of a counseled amended petitionand deny Wilson’s motions to extend time as moot. Lastly, I grant Respondents’ motion to seal.3 19 Background 20 Wilsoninitiated this federal habeas proceeding in April 2019.4 Hechallenges anAugust 2013conviction and sentence imposed by the Eighth Judicial District Court for Clark County after he pled guilty to two counts: second degree murder with use of a deadly weapon and attemptedmurder.5 Prior to sentencing, Wilsonmoved to withdraw his guilty plea, arguing that 1ECF No.7.

2ECF No.21,24, 25, 26.

3ECF No.22.

27 4ECF No.1.

28 5ECF Nos.18-28,18-29, 18-30.

1 his plea was not knowing and voluntary because he was under the influence of mind-altering drugs.6 The state court denied his request.7 Wilsonwas sentenced to life with the possibility of parole after ten years for themurder, plus a consecutive term of 8–20years for use of the deadly weapon, and a consecutive term of 8–20years for the attemptedmurder.8 On direct appeal, Wilsonalleged that he was forced to take psychotropic drugs while in custody, which clouded his mind and resulted in an unknowing guilty plea.9 In post-conviction proceedings, Wilson asserted among other things that trial counsel failed to alert the state court of his compromised mental state.10 9 In April 2019, I denied Wilson’s first motion for appointment of counsel, finding that the petition presented the issues that Wilsonwishes to bring sufficiently clearly,and that the issues are not particularly complex.11 After multiple extensions of time to respond, Respondents moved to dismiss Wilson’s petition, arguing that his seven grounds for relief are conclusory, non- cognizable, and unexhausted.12 Respondents also filed the state court record.13 Wilsonhas now renewed his request for appointedcounsel and asks for additional time to oppose Respondents’ motion to dismiss.14 6ECF Nos. 19-2, 19-4, 19-5, 19-11.

7Id.

8ECF No. 19-8.

24 9ECF Nos. 19-9, 19-18.

25 10ECF No.19-26.

11ECF No.6.

12ECF No.21.

27 13ECF No.18, 19, 20.

28 14ECF Nos.25, 25, 26.

1 Discussion A. Motions to Appoint Counsel, to Dismiss, and to Extend Time[##21,24,25, 26] 3 There is no constitutional right to appointed counsel in a federal habeas corpus proceeding.15 However, an indigent petitioner seeking relief under 28 U.S.C. §2254 may request the appointment of counsel to pursue that relief.16 The court has discretion to appoint counsel when the interests of justice so require.17 The interests of justice so require “when the complexities of the case are such that denial of counsel would amount to a denial of due process.”18 In the absence of such circumstances, a request for counsel in a § 2254 proceeding is addressed to the sound discretion of the district court.19 10 Upon preliminary review of the motionto dismiss and state court record, I find that the interests of justice will be served by appointing counsel in this case. The dismissal motion suggests that the procedural historyof Wilson’s underlying criminal case is relatively complex.

13 Wilsonis serving a lengthy prison sentence. Moreover,Wilson’s arguments before Nevada’s courts plainly involve allegations of mental-health issues. I am persuadedthat appointment of counsel here will servethe interests of justice, so I grant Wilson’s motion.

16 Consistent with this Court’s common practice upon the appointment of counsel in habeas matters, Wilsonwill be given leave for his newly appointed attorney to amendhis petition. Once counsel is confirmed, I will set a deadline for counsel to file an amended petition. Ithus deny Respondents’ motion to dismiss without prejudice and deny Wilson’s motions to extend timeas moot.

15See Luna v. Kernan, 784 F.3d 640, 642 (9th Cir. 2015) (citing Lawrence v. Florida, 549 U.S. 327, 336– 37 (2007)).

1618 U.S.C. §3006A(a)(2)(B).

17Id.

27 18Brown v. United States,623 F.2d 54, 61 (9th Cir. 1980).

28 19Id. (citing Dillon v. United States, 307 F.2d 445, 447 (9th Cir. 1962)).

1 B. Motion to Seal [#22] 2 Turning to the motion to seal, Respondents seek leave to file under seal Wilson’s Presentence Investigation Report (“PSI”).20 Under Nevada law, the PSI is “confidential and must not be made a part of any public record.”21 In accordance with Ninth Circuit precedent,22 I find that a compelling need to protect Wilson’s safety, privacy, and personal identifying information outweighs the public interest in open access to court records. So I grant the motion to seal and direct the Clerk of Court to maintain the PSI under seal.

8 Conclusion 9 IT IS THEREFORE ORDEREDthat: 10 1. Respondents’Motion to Dismiss [ECF No.21] is DENIED without prejudice.

11 2. Respondents’ Motion to Seal [ECF No.22] is GRANTED. The Clerk of Court is 12 directed to MAINTAIN the seal on ECF No. 23.

13 3. Petitioner Jeffrey Wilson’s Motions to Extend Time [ECF Nos.24, 26]are DENIED 14 as moot.

15 4. Wilson’s Motion for Appointment of Counsel [ECF No.25] is GRANTED.

16 5. The Federal Public Defender is provisionally appointed as counsel and will have 30 17 days to undertake direct representation of Wilson or to indicate the office’s inability 18 to represent Wilson in these proceedings. If the Federal Public Defender is unable to 19 represent McNeal, I will appoint alternate counsel. Counsel will represent Wilson in 20 all federal proceedings related to this matter, including any appeals or certiorari 21 proceedings, unless allowed to withdraw. A deadline for the filing of an amended 22 petition and/or seeking other relief will be set after counsel has entered an 23 appearance. I anticipate setting the deadline for approximately 90 days from entry of 24 the formal order of appointment.

25 6. Any deadline established and/or any extension thereof will not signify any implied 20ECF Nos.22, 23.

27 21Nev. Rev. Stat. § 176.156(5).

28 22See Kamakana v. City &County of Honolulu, 447 F.3d 1172 (9th Cir. 2006).

1 finding of a basis for tolling during the time period established. Wilson at all times 2 remains responsible for calculating the running of the federal limitation period and 3 timely presenting claims. That is, by setting a deadline to amend the petition and/or 4 by granting any extension thereof, I make no finding or representation that the 5 petition, any amendments thereto, and/or any claims contained therein are not subject 6 to dismissal as untimely.”* 7 7. The Clerk of Court is directed to SEND a copy of this order to the pro se petitioner, 8 the Nevada Attorney General, the Federal Public Defender, and the CJA Coordinator 9 for this division. The Clerk is further directed to PROVIDE the Federal Public 10 Defender with copies of all prior filings in this case by regenerating notices of 11 electronic filing or through such other means as is expedient for the Clerk.

12 Dated: March 1, 2020 ce TL 13 —_ KA) Joes —____ US. rls ge Jennifer A. Dorsey || See Sossa v. Diaz, 729 F.3d 1225, 1235 (9th Cir. 2013).