Smith v. State of Nevada

3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA Charles Smith, Case No.: 2:20-cv-01781-RFB-VCF 6 Petitioner, Order v. 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 Charles Smuth, a Nevada prisoner who is serving an aggregate sentence of 35 years with a minimum of 14 years before parole eligibility. ECF No. 1-1. This court previously ordered him to pay the $5.00 filing fee to initiate this action and to file an amended habeas petition on the court’s approved form. ECF No. 3.

16 Smith has paid the filing fee, so his initial petition (ECF No. 1-1) and motion for appointment of counsel (ECF No. 1-2) will be filed by the Clerk. Instead of filing an amended petition, however, Smith filed a motion to stay this case in order to exhaust his state court remedies before proceeding herein. ECF No. 6. Finding that appointment of counsel is warranted, the court 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 counsel unless the circumstances of a particular case indicate that appointed counsel is necessary to prevent due process violations.” Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986) (citing Kreiling v. Field, 431 F.2d 638, 640 (9th Cir. 1970) (per curiam). The court may, however, appoint 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 likely that there will be relatively complex issues to be addressed at the outset of this case, and it appears that Smith may not be able to adequately litigate those issues without counsel. Therefore, 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 habeas corpus (ECF No. 1-1) and motion for appointment of counsel (ECF No. 1-2) attached to petitioner’s motion to proceed in forma pauperis.

10 IT IS FURTHER ORDERED that the Clerk is directed to add Aaron Ford, Attorney General of the State of Nevada, as counsel for respondents and to provide respondents an electronic copy of all items previously filed in this case by regenerating the Notice of Electronic Filing to the office of the Attorney General only.

14 IT IS FURTHER ORDERED that respondents shall have 20 days from the date on which the petition is served upon them to appear in this action. Respondents will not be required to respond to the habeas petition at this time.

17 IT IS FURTHER ORDERED that petitioner’s motion for appointment of counsel is GRANTED. The Federal Public Defender for the District of Nevada (FPD) is appointed to represent petitioner. If the FPD is unable to represent the petitioner, due to a conflict of interest or other reason, then alternate counsel will be appointed. In either case, counsel will represent the 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 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