Morga v. Daniels

’ FILEU RECEIVED ___ ENTERED SERVED ON COUNSEL/PARTIES OF RECORD | SEP 22 2021 | Comontlorga. CLERK US DISTRICT COURT (print name above] » DISTRICT OF NEVADA Baal Dese cb Shake A soy BY of prison, jail or other detention facility] 83082 {booking number at prison, jail or other detention facility] | Box 650 {street address or P.O. Box] Endian Serings Nv_ 89079 2:21-cv-01743-APG-BNW 8 state, and zip code | Appearing Pro Se ( 0 IN THE UNITED STATES DISTRICT COURT Il 12 FOR THE DISTRICT OF NEVADA 13 ) ) amon larga No. [prot name] ) [Wire in case number, if you have one. If you are mailing 15 ) this to the court with a new petition and do not have a case Petitioner, ) number, leave this blank for court clerk to fill inj 16 ) v. ) EX-PARTE 17 Lo ) REQUEST FOR APPOINTMENT OF Brian EG Wiwams SR.) COUNSEL IN A FEDERAL HABEAS CORPUS IS {warden of facility in which you are incarcerated] — ) CASE ) 19 Respondent. ) □□ 20) I. Introduction Petitioner Qoman Meo-coa | {print name] hereby respectfully 2? _ requests that the Court appoint counsel to represent him/her in this matter. fabeas corpus proceedings “are of fundamental importance... in our constitutional scheme because they directly protect our most valued rights.” Brown v. Vasquez, 952 F.2d 1164, 1169 (9th Cir. 44 1991) (quoting Bounds v. Sinith, 430 U.S. S17, 827 (1977)) (citations and internal quotations omitted).

7 Consequently, pursuant to [8 U.S.C. § 3006A(a)(2)(B). this Court has the authority to appoint counsel to WIVSWED | || assist an indigent Petitioner if the interests of justice so require. In the present case, Petitioner does not || have the financial resources to retain counsel. See Application to Proceed Without Prepayment of Fees | and Affidavit (In Forma Pauperis). Rule 8(c) of the Habeas Rules makes clear that district judges have the || discretion to order “the appointment of counsel under |the Criminal Justice Act] at any stage of the || proceeding.”

6 In deciding whether to appoint counsel, this Court must “evaluate [1] the likelihood of success on || the merits as well as [2] the ability of the petitioner to articulate his claims pro se in light of the || complexity of the legal issues involved.” HWeygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983), accord Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997). As discussed at length in one treatise, || the courts generally have endorsed the appointment of counsel to represent indigent and legally || unsophisticated prisoners in the following types of non-capital cases: 12 (1) Cases that turn on substantial and complex procedural, legal or mixed legal and factual questions (e.g., the fair composition of grand and petit juries, the voluntariness of 13 confessions, and the effective assistance of counsel).

14 (2) Cases involving uneducated or mentally or physically impaired petitioners.

15 (3) Cases likely to require the assistance of experts either in framing or in trying the claims.

16 (4) Cases in which “‘the indigent is in no position to investigate crucial facts.””

17 (5) Factually complex cases, e.g., ones involving “conflicting testimony,” in which the truth is more likely to ‘tbe exposed where both sides are represented by those trained in the 18 presentation of evidence.”

19 1 R. Hertz & J. Liebman, Federal Habeas Corpus Practice and Procedure, § 12.3 (Sth ed. 2005) (internal | quotations and citations omitted, numbering altered).

21 In addition, appointment of counsel is mandatory for indigent noncapital petitioners (a) when 22 counsel is “‘necessary for effective [use of the] discovery’” procedures! and (b) pursuant to Habeas Rule | 8(c), if the district court determines that “an evidentiary hearing is warranted.””

24 As set forth below, appointment of counsel is appropriate in this case.

| Rule 6(a) of the Rules Governing Section 2254 Cases in the United States District Courts. * Rule 8(c) of the Rules Governing Section 225+ Cases in the United States District Courts.

227378. WPD IA Additional Relevant Facts and Procedural History oO EES ee 2 Petitioner was convicted of: [List all offense(s) for which you were □□□□□□ —___feritroner was convicted OF Lost abt rese\s/ tor wich YOU Were □□□□□□ 3 4 WE?’ OCU 0 Viola ke nikas VM ACS C-4 amid £ Ot Chiv 4 Length of terms of sentence(s): EE 5 IQ +0 ZO Uk oS 6 A. DIRECT APPEAL : \ Petitioner DID/OLD_NOT [circle ae] file a Direct Appeal.

Petitioner WASAWAS NOT [circle me] Represented by Counsel or 8 Petitioner raised [number] of issues on Direct Appeal ao } 9 B. STATE HABEAS 10 Petitioner(DIW/DID NOT [circle me] file a state habeas petitic Petitioner(WAS/WAS NOT [circle ae] Represented by Counsel or 11 Petitioner raised [mnber]issues in the state habeas, which also included [amberf[claims of ineffective — assistance of counsel.

13 || ____C. APPEAL OF DENIAL OF STATE HABEAS 14 Petitioner QIDYDID NOT [circle ae] appeal the denial of habeas PetitionerCWAS/WAS NOT [circle ae] Represented by Counsel or 1o jf ———__ eee || _--_ DD. OTHER PROCREDINGS: 17 itioner also presented the following issues to the Nevac Supreme Court (If Applicable)(i.e. appeal of Motion to Modi |) ————__—_--______ wp

29 4.

24 * = Petitioner was represented by Counsel in 1-5. place a (*]. □□□ to all that apply 95 Petitioner WASWAS NOTJallowed DISCOVERY [circle all that apply]: DIR APDE A A HABEA OTHER Mere Tit FES Petitioner WAS/WAS NOT provided a Hearing [circle all that apply]: 27 IRECT APPEAL (oral tYHABEAS (evidenti OTHER . for list 1-5] 08 Page 3° ' | I. Argument 2 A. Appointment of counsel is appropriate because this case involves substantial and complex procedural, legal or mixed legal and factual questions. (If your case involves substantial or complex legal and factual issues, explain | 4 ~ —————— eee 6 WW vavorlve a Ache Nor Careae AT mg Mery 7 Crom Sevcdwie, DR ke Schedule - | Soro. Voscec \ ‘ □□ . .

8 Cu vwishisn est o \ eQending OVA Cussianc és ot loc, turing wns We Slate czauived be Crave. vol We Sulbslance | Seized im 45 Case Wigs Sledule~\ aS an levine □□ lS 1p | Awe Cetlwre uncle TAAn21 00 ~ Belkan AAG Nev Advance Otinemn SS | ow ————-

18 B. Appointment of counsel is appropriate because petitioner lacks education or is mentally or physically impaired.

19 you lick education or are physically or mentally disabled/imparred, explain] ee d w | 15 \a ConPrelerd Gceoause Vice is —Q._Lamowteg Nreriee A a i tt |} ————__ eee eee Tee JIS. WPD l C. Appointment of counsel is appropriate because this case will probably require the assistance of experts either in framing or in proving the chiims. (If you will need the assistance of an expert (c.g. a psychologist. a scientisy) to explain your claim of to help you prove your claim, explain | «4 □□ B C C7 5 K COMM CE 4 POOF A 2 1norwm Gwd |__expech ee a 10. |) —— ee — 13 Po on 15 D. Appointment of counsel is appropriate because the petitioner is indigent and is in no position to investigate crucial facts. [If you will have difficulty investigating the facts in your case because you lack money to hire an investizator and you cannot do your own investization because, for example, you are in prison, cs plain] Poy ni □□ 19 NVOY TES.

4 =~ 20 ova AtLoagy Waal Cain “onvestigee 2) fa eee |W} eee wee |} ee ee EE 227378 WPD it li | E. Appointment of counsel is apprepriate because this is a case in which the parties dispute the facts, and thus the truth is more likely to “be exposed where both sides are 2 represented by those trained in the presentation of evidence.”

3 (If your case involves disputed facts (for example you and the gos ernment dispute whether you rejected a plea offer), explain] if} 5 CERLLAG aa rt eEXas’ C) ne A. Q 6 yartcae unicnmes ha nw SyYake . \s □□□□ 7 \\ \ (8 gs Day g eo of

12 Jo 13 F.__LIMITATIONS OF THE HDSP LAW LIBRARY AND MAILING SYSTEM Petitioner is currently incarcerated at HDSP and is housed in a ee 15 Unit Q % , which is classified as Level 7 .

16 1. Limitations of the HDSP Law Library 17 As of the date of the filing of this Motion, Unit S » is 18 Level 7 , only has access to the HDSP law library on (day) from to (time) and _on (day) £Erom to (time) or (HAS NO RECT ACCESS }(circle if applicable).

55 The law library only allows up to 25 inmates per session out 33 of approximately 300 + inmates. Requests must be submitted one week in advance for consideration to be placed on an approved list.

25 I j ou_are required to attend the law library 26 i ials, forms, obtain any 27 copies and seek the assistance of law clerks. No requests may be ! . _£illed—b SES 227378. WED

Up to 10 items may be checked out at a time. No books are 2||_available for checkout and cases and statutes are only available || -on_a_computer retrieval system which has approximately 7 availat stations for 25 inmates, First come, first seryed..

5 The inadequacies of the NDOC law library system has been 13 || igated in Koershner v,. Warden, 508 F.Supp. 2d 849 (Nev. 2007) ar || other cases, See, Moxley _v. Neven, 2:07-cv-01123-RLH-GWF (D. Nex 25890. □□□□□□ 10 2. Limitations of the HDSP Mailing System || ————As-of March of 2012, outgoing legal _mail_is_notlogged_at~.

2 HDSP,. If an inmate sends mail by a brass slip to cover the cost || 2further delay of 1-2 days occurs while the brass slip is proce || -ssed. If stamps are used to mail out legal mail there is no reco |} Of it kept at HDSP, Inmates are also limited in the amount of _ {| Mo method in the units to determine sufficient postage for items | often delivered after the close of afternoon tier. Therefore any response is delayed as the outgoing mail is delivered to the post mailboxess tC—<“is~=“‘“‘<CSC OS Te AT |) 23] page 7. [Continued on Page 8] + 4 { Lj} Argument F - Continued. eee eee eee —_————_ eee eee OT 11 G Any Additional Factors for the Court's Consideration. [Explain any other reasons for appointment of counsel, —_if.applicable] TT □ OTT I RR a oan. Conclusion □ 18 This Court has the authority and should appoint counsel for Petitioner pursuant to 18 ULS.C, ff §3006A (a)(2)(B). Appointment of counsel will serve the interests of justice and Judicial expedience an j| economy. al 22 Respectfully submitted, 23-1 Dated: = LO 7 Zac SH na tury 25 BSOSZ _ [type or print tape] | Page 8