Rodriguez v. State of Nevada

2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA ELMER RODRIGUEZ, Case No. 3:24-cv-00032-ART-CSD 5 Petitioner, ORDER 6 v. STATE OF NEVADA, et al., 8 Respondents.

10 This action is a petition for a writ of habeas corpus under 28 U.S.C. § 2254 by Elmer Rodriguez, an individual incarcerated at Nevada’s Lovelock Correctional Center. On January 19, 2024, Rodriguez, pro se, filed an Application to Proceed in Forma Pauperis (ECF No. 1) and he submitted for filing a Petition for Writ of Habeas Corpus (ECF No. 1-1), and on January 23, 2024, he filed a Motion for Appointment of Counsel (ECF No. 3).

16 The financial certificate filed with Rodriguez’s in forma pauperis application shows that he is able to pay the $5 filing fee for this action. His in forma pauperis application will therefore be denied. However, the Court will not set a deadline for Rodriguez to pay the filing fee or file a new in forma pauperis application until after appointed counsel appears for him.

21 The Court has examined Rodriguez’s petition as mandated by 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 direct the respondents to appear, but will not require any further action on the part of the respondents at this time.

26 State prisoners applying for habeas corpus relief 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 Rodriguez’s Motion for Appointment of Counsel and will appoint the Federal Public Defender for the District of Nevada (FPD) to represent him.

9 It is therefore ordered that Petitioner’s Application to Proceed in Forma Pauperis (ECF No. 1) is denied.

11 It is further ordered that Petitioner’s Motion for Appointment of Counsel (ECF No. 3) is granted. The Federal Public Defender for the District of Nevada (FPD) is appointed to represent the petitioner. If the FPD is unable to represent the 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 Petitioner in this case.

23 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.

1 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.

6 DATED THIS 25th day of January 2024.

8 ANNER TRAUM 9 UNITED STATES DISTRICT JUDGE