Owens v. Gittere ( 2021 )

1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 * * * 6 DARIAN OWENS, Case No. 3:21-cv-00307-MMD-WGC 7 Petitioner, ORDER v. 8 WILLIAM A. GITTERE, et al., 9 Respondents. 10 11 Petitioner Darian Owens, a pro se Nevada inmate, commenced this habeas action 12 by filing a petition for writ of habeas corpus. (ECF No. 1-1 (“Petition).) This habeas matter 13 is before the Court for initial review under the Rules Governing Section 2254 Cases,1 as 14 well as consideration of Owens’s motion for pppointment of counsel (ECF No. 1-2 15 (“Motion”)). For the reasons discussed below, the Court directs service of the Petition and 16 will grant the Motion. 17 Pursuant to Habeas Rule 4, the assigned judge must examine the habeas petition 18 and order a response unless it “plainly appears” that the petitioner is not entitled to relief. 19 See Valdez v. Montgomery, 918 F.3d 687, 693 (9th Cir. 2019). The rule allows courts to 20 screen and dismiss petitions that are patently frivolous, vague, conclusory, palpably 21 incredible, false, or plagued by procedural defects. See Boyd v. Thompson, 147 F.3d 22 1124, 1128 (9th Cir. 1998); Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990) 23 (collecting cases). 24 Owens challenges a conviction and sentence imposed by the Eighth Judicial 25 District Court for Clark (“state court”). See Nevada v. Darian Owens, Case No. C-14- 26 300761-2.2 On November 25, 2015, the state court entered a judgment of conviction for 27 1All references to a “Habeas Rule” or the “Habeas Rules” in this order identify the 28 Rules Governing Section 2254 Cases in the United States District Courts. 1 nine counts of conspiracy to commit robbery, 11 counts of burglary while in possession 2 of a firearm, 10 counts of robbery with use of a deadly weapon, and one count of 3 possession of a firearm by an ex-felon. The court imposed a sentence of 32-consecutive 4 terms of life without the possibility of parole pursuant to the large habitual criminal statute. 5 The Nevada Supreme Court affirmed the conviction. In March 2018, Owens filed 6 a state petition for writ of habeas corpus. The state court denied post-conviction relief. 7 Owens then filed a post-conviction appeal. The Nevada Supreme Court affirmed the 8 denial of relief in July 2021, and a remittitur issued the following month. 9 On July 20, 2021, Owens initiated this federal habeas corpus proceeding pro se. 10 (ECF No. 1.) The Court previously instructed Owens to resolve the filing fee, and Owens 11 timely complied. (ECF Nos. 3, 5.) The Court, having conducted an initial review, will direct 12 service of the Petition. 13 In regards to Owen’s Motion, there is no constitutional right to appointed counsel 14 in a federal habeas corpus proceeding. See Luna v. Kernan, 784 F.3d 640, 642 (9th Cir. 15 2015) (citing Lawrence v. Florida, 549 U.S. 327, 336-37 (2007)). However, an indigent 16 petitioner may request appointed counsel to pursue relief. See 18 U.S.C. § 17 3006A(a)(2)(B). The decision to appoint counsel is generally discretionary. Id. 18 (authorizing appointment of counsel “when the interests of justice so require”). But 19 counsel must be appointed if the complexities of the case are such that denial of counsel 20 would amount to a denial of due process, and where the petitioner is so uneducated that 21 he or she is incapable of fairly presenting his or her claims. See La Mere v. Risley, 827 22 F.2d 622, 626 (9th Cir. 1987); Brown v. United States, 623 F.2d 54, 61 (9th Cir. 1980). 23 The Court finds that appointment of counsel in this case is in the interest of justice. 24 Owens is serving lengthy consecutive sentences of life without the possibility of parole. 25 Owens’s Petition may raise relatively complex issues and it is unclear whether Owens will 26 be able to adequately articulate his claims in proper person with the resources available 27 District Court and Nevada appellate courts. The docket records may be accessed by the 28 public online at: https://www.clarkcountycourts.us/Anonymous/default.aspx and http:// 1 to him. Therefore, Owens’s Motion is granted. 2 It is therefore ordered that Petitioner Darian Owens’s motion for appointment of 3 counsel (ECF No. 1-2) is granted. 4 It is further ordered that The Federal Public Defender (“FPD”) is provisionally 5 appointed as counsel and will have 30 days to undertake direct representation of Owens 6 or to indicate the office’s inability to represent Owens in these proceedings. If the FPD is 7 unable to represent Owens, the Court will appoint alternate counsel. The counsel 8 appointed will represent Owens in all federal proceedings related to this matter, including 9 any appeals or certiorari proceedings, unless allowed to withdraw. A deadline for the filing 10 of an amended petition and/or seeking other relief will be set after counsel has entered 11 an appearance. The Court anticipates a deadline of approximately 60 days from entry of 12 the formal order of appointment. 13 It is further ordered that any deadline established and/or any extension thereof will 14 not signify any implied finding of a basis for tolling during the time period established. 15 Owens at all times remains responsible for calculating the running of the federal limitation 16 period and timely presenting claims. That is, by setting a deadline to amend the Petition 17 and/or by granting any extension thereof, the Court makes no finding or representation 18 that the Petition, any amendments thereto, and/or any claims contained therein are not 19 subject to dismissal as untimely. See Sossa v. Diaz, 729 F.3d 1225, 1235 (9th Cir. 2013). 20 The Clerk of Court is directed to file Petitioner Darian Owens’s petition for writ of 21 habeas corpus (ECF No. 1-1). 22 The Clerk of Court is further directed to add Nevada Attorney General Aaron D. 23 Ford as counsel for Respondents and to provide Respondents an electronic copy of all 24 items previously filed in this case by regenerating the Notice of Electronic Filing to the 25 Office of the Attorney General only. Respondents’ counsel must enter a notice of 26 appearance within 21 days of entry of this order, but no further response will be required 27 from Respondents until further order of the Court. 28 /// 1 The Clerk of Court is further directed to send a copy of this order to Owens, the 2 || Nevada Attorney General, the FPD, and the CJA Coordinator for this division. 3 DATED THIS 28" Day of October 2021. 4 `` ° □□ 6 MIRANDA M. DU CHIEF UNITED STATES DISTRICT JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28