Gipson v. Bean ( 2023 )

2 DISTRICT OF NEVADA 3 4 JOSHUA J. GIPSON, Case No. 2:23-cv-00099-CDS-DJA 5 Petitioner ORDER APPOINTING COUNSEL v. 6 7 JEREMY BEAN, et al., 8 Respondents 9 10 Pro se Petitioner Joshua Gipson transmitted his Petition for Writ of Habeas Corpus 11 pursuant to 28 U.S.C. § 2254 on or about January 19, 2023. ECF No. 4 (“Petition”). I conducted 12 an initial review of the Petition under the Rules Governing Section 2254 Cases and directed 13 service of the Petition. ECF No. 3. On February 2, 2023, Gipson moved for the appointment of 14 counsel. 15 There is no constitutional right to appointed counsel in a federal habeas corpus 16 proceeding. Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); Bonin v. Vasquez, 999 F.2d 425, 428 (9th 17 Cir. 1993). The decision to appoint counsel is generally discretionary. Chaney v. Lewis, 801 F.2d 18 1191, 1196 (9th Cir. 1986), cert. denied, 481 U.S. 1023 (1987); Bashor v. Risley, 730 F.2d 1228, 1234 (9th 19 Cir.), cert. denied, 469 U.S. 838 (1984). However, counsel must be appointed if the complexities of 20 the case are such that denial of counsel would amount to a denial of due process, and where the 21 petitioner is a person of such limited education as to be incapable of fairly presenting his claims. 22 See Chaney, 801 F.2d at 1196. 23 Following another review of Gipson’s Petition and the motion for appointment of 24 counsel, I provisionally appoint the Federal Public Defender to represent Gipson. I find that 25 appointment of counsel is in the interests of justice given, among other things, Gipson’s lengthy 26 sentence and mental health issues.1 27 28 1 Notably, Gipson pleaded guilty but mentally ill to conspiracy to commit robbery, robbery with the use of a deadly weapon, and battery with the use of a deadly weapon resulting in substantial bodily harm. Also, 2 granted. 3 It is further ordered that the clerk electronically serve the Federal Public Defender a copy 4 of (1) this order, (2) the petition [ECF No. 4], and (3) the January 20, 2023, order [ECF No. 3]. 5 The Federal Public Defender is provisionally appointed as counsel and will have 30 days to (1) 6 undertake direct representation of Gipson by filing a notice of appearance or (2) indicate the 7 office’s inability to represent Gipson in these proceedings. If the Federal Public Defender is 8 unable to represent Gipson, I will appoint alternate counsel. Appointed counsel will represent 9 Gipson in all federal proceedings related to this matter, including any appeals or certiorari 10 proceedings, unless allowed to withdraw. A deadline for the filing of an amended petition and/or 11 seeking other relief will be set after counsel has entered an appearance. I anticipate a deadline of 12 approximately 90 days from entry of the formal order of appointment. 13 It is further ordered that any deadline established and/or any extension thereof will not 14 signify any implied finding of a basis for tolling during the time period established. Gipson 15 remains responsible for calculating the running of the federal limitation period and timely 16 presenting claims. That is, by setting a deadline to amend the petition and/or by granting any 17 extension thereof, I make no finding or representation that the petition, any amendments 18 thereto, and/or any claims contained therein are not subject to dismissal as untimely. See Sossa v. 19 Diaz, 729 F.3d 1225, 1235 (9th Cir. 2013). 20 It is further ordered that the clerk send a copy of this order to Gipson and the CJA 21 Coordinator for this division. 22 It is further ordered that Respondents’ deadline for answering or otherwise responding 23 to the Petition is vacated in light of this order. A new scheduling order will be entered following 24 the appearance of Gipson’s counsel. 25 DATED: February 7, 2023 26 27 UNITED STATES DISTRICT JUDGE 28