1

2 UNITED STATES DISTRICT COURT

3 DISTRICT OF NEVADA

4 ACE V. WHITENER, Case No. 3:22-cv-00528-ART-CSD

5 Petitioner, ORDER

6 v.

7 TIM GARRETT, et al.,

8 Respondents.

9 10 This action is a petition for a writ of habeas corpus, pursuant to 28 U.S.C. 11 § 2254, by Ace V. Whitener, who is incarcerated at Nevada’s Lovelock Correctional 12 Center. On November 30, 2022, Whitener filed an application to proceed in forma 13 pauperis (ECF No. 1), a habeas petition (ECF No. 1-1), exhibits in support of the 14 petition (ECF No. 1-5), a memorandum of points and authority in support of the 15 petition (ECF No. 1-2), a motion for appointment of counsel (ECF No. 1-3), and a 16 letter to the Clerk of the Court regarding payment of the filing fee (ECF No. 1-4). 17 The Court has placed the exhibits and the memorandum of points and authorities 18 under seal. (See ECF No. 3.) 19 The information provided by Whitener in his application to proceed in forma 20 pauperis (ECF No. 1) shows that he is able to pay the filing fee for this action, 21 and, additionally, Whitener’s letter to the Clerk (ECF No. 1-4) indicates that he 22 intends to pay the filing fee. The Court will, therefore, deny the application to 23 proceed in forma pauperis, but will not set a deadline for Whitener to pay the 24 filing fee until after appointed counsel appears for him. 25 State prisoners applying for habeas corpus relief are not entitled to 26 appointed counsel unless the circumstances indicate that appointed counsel is 27 necessary to prevent due process violations. Chaney v. Lewis,

, 28 1196 (9th Cir. 1986) (citing Kreiling v. Field,

(9th Cir. 1970) 1 (per curiam)). The court may, however, appoint counsel at any stage of the 2 proceedings if the interests of justice so require. See 18 U.S.C. § 3006A; see also 3 Rule 8(c), Rules Governing § 2254 Cases; Chaney,

. Whitener’s 4 petition indicates that he is serving a sentence of life in prison with the possibility 5 of parole after 35 years, and it appears that the petition raises issues that may 6 be relatively complex, such that the interests of justice call for appointment of 7 counsel. The Court will grant Whitener’s motion for appointment of counsel and 8 will appoint the Federal Public Defender for the District of Nevada (FPD) to 9 represent him. 10 The Court has examined Whitener’s petition pursuant to Rule 4 of the 11 Rules Governing Section 2254 Cases in the United States District Courts and 12 determines that it merits service upon the Respondents. The Court will order the 13 petition served upon the Respondents, and will direct the Respondents to appear, 14 but will not require any further action on the part of the Respondents at this 15 time. 16 It is therefore ordered that Petitioner’s Application to Proceed in Forma 17 Pauperis (ECF No. 1) is denied. 18 It is further ordered that the Clerk of the Court is directed to separately file 19 the Petition for Writ of Habeas Corpus (ECF No. 1-1) and the Motion for 20 Appointment of Counsel (ECF No. 1-3). 21 It is further ordered that Petitioner’s Motion for Appointment of Counsel 22 (ECF No. 1-3) is granted. The Federal Public Defender for the District of Nevada 23 (FPD) is appointed to represent the Petitioner. If the FPD is unable to represent 24 the Petitioner, because of a conflict of interest or for any other reason, alternate 25 counsel will be appointed. In either case, counsel will represent the Petitioner in 26 all federal court proceedings relating to this matter, unless allowed to withdraw. 27 /// 28 /// 1 It is further ordered that the Clerk of the Court is directed to electronically 2 || serve upon the FPD a copy of this order, together with a copy of the Petition for 3 || Writ of Habeas Corpus (ECF No. 1-1). 4 It is further ordered that the FPD will have 30 days from the date of this 5 || order to file a notice of appearance, or to indicate to the Court its inability to 6 || represent the Petitioner in this case. 7 It is further ordered that the requirement that Petitioner pay the filing fee 8 || for this action is suspended. The Court will set a deadline for payment of the filing 9 || fee after counsel appears for the Petitioner. 10 It is further ordered that the Clerk of the Court is directed to add Aaron 11 || Ford, Attorney General of the State of Nevada, as counsel for Respondents and to 12 || provide Respondents an electronic copy of all items previously filed in this case 13 || by regenerating the Notice of Electronic Filing to the office of the Attorney General 14 || only. 15 It is further ordered that Respondents will have 30 days from the date of 16 || this order to appear in this action. Respondents will not be required to respond 17 || to the habeas petition at this time. 18 19 DATED THIS 2nd day of December, 2022. 20 j Vd 21 Cpe Mota Home _ 29 UNITED STATES DISTRICT JUDGE 23 24 25 26 27 28