Wenger v. Reubart

2 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA Joan Kathryn Wenger, Case No. 2:23-cv-01965-CDS-DJA 5 Petitioner Order Denying Petitioner’s Application to Proceed in Forma Pauperis and Granting v. 6 Motion for Appointment of Counsel

7 William Reubart, et al., [ECF Nos. 1, 1-2] 8 Respondents

10 This action is a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, by Joan Kathryn Wenger, an individual incarcerated at Nevada’s Florence McClure Women’s Correctional Center. Wenger has filed an application to proceed in forma pauperis (ECF No. 1), a petition for writ of habeas corpus (ECF No. 1-1), and a motion for appointment of counsel (ECF No. 1-2).

15 Wenger’s application to proceed in forma pauperis (ECF No. 1) is incomplete, as it does not include the required financial certificate. See LSR 1-2. The court will, therefore, deny the application to proceed in forma pauperis, and will set a deadline for Wenger to pay the $5 filing fee or file a new in forma pauperis application after appointed counsel appears for her.

19 The court has examined Wenger’s petition pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts and determines that it merits service upon the respondents. The court will order the petition served upon the respondents, and will order the respondents to appear, but will not require any further action on the part of respondents at this time.

1 State prisoners not sentenced to death and applying for habeas corpus relief in federal court are not entitled to appointed counsel unless the circumstances 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. § 3006A; see also Rule 8(c), Rules Governing § 2254 Cases; Chaney, 801 F.2d at 1196. The court determines that the interests of justice call for appointment of counsel in this case. The Court will grant Wenger’s motion for appointment of counsel and will appoint the Federal Public Defender for the District of Nevada (FPD) to represent her.

10 IT IS THEREFORE ORDERED that petitioner’s application to proceed in forma pauperis [ECF No. 1] is DENIED.

12 IT IS FURTHER ORDERED that petitioner’s motion for appointment of counsel [ECF No. 1-2] is GRANTED. The Federal Public Defender for the District of Nevada is appointed to represent petitioner. If the FPD is unable to represent petitioner, because of a conflict of interest or any other reason, alternate counsel will be appointed. Counsel will represent petitioner in all federal court proceedings relating to this matter, unless allowed to withdraw.

17 IT IS FURTHER ORDERED that the Clerk of the Court is directed to electronically serve upon the FPD a copy of this order, together with a copy of the petition for writ of habeas corpus (ECF No. 1-1).

20 IT IS FURTHER ORDERED that the FPD will have 30 days from the date of this order to file a notice of appearance, or to indicate to the court its inability to represent the petitioner in this case.

23 IT IS FURTHER ORDERED that the requirement that petitioner pay the filing fee for this action is suspended. The court will set a deadline for petitioner to pay the filing fee or to file a new application to proceed in forma pauperis after counsel appears for her.

1 IT IS FURTHER ORDERED that the Clerk of the Court 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.

5 IT IS FURTHER ORDERED that respondents will have 30 days from the date of this || order to appear in this action. respondents will not be required to respond to the habeas petition || at this time.

8 DATED: November 30, 2023 □□ 9 // Cristi pa. Silva I] Unité VStates District Judge