Valencia v. Garrett ( 2022 )

1 2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 IGNACIO VALENCIA, Case No. 3:22-cv-00554-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 Ignacio Valencia, who is incarcerated at Nevada’s Lovelock 12 Correctional Center. On December 19, 2022, the Court received from Valencia an 13 application to proceed in forma pauperis (ECF No. 1), a habeas petition (ECF No. 14 1-1), and a motion for appointment of counsel (ECF No. 1-2). 15 The information provided by Valencia in his application to proceed in forma 16 pauperis (ECF No. 1) shows that he is able to pay the filing fee for this action. The 17 Court will, therefore, deny the application to proceed in forma pauperis, but will 18 not set a deadline for Valencia to pay the $5 filing fee until after appointed counsel 19 appears for him. 20 State prisoners applying for habeas corpus relief are not entitled to 21 appointed counsel unless the circumstances indicate that appointed counsel is 22 necessary to prevent due process violations. Chaney v. Lewis, 801 F.2d 1191, 23 1196 (9th Cir. 1986) (citing Kreiling v. Field, 431 F.2d 638, 640 (9th Cir. 1970) 24 (per curiam)). The court may, however, appoint counsel at any stage of the 25 proceedings if the interests of justice so require. See 18 U.S.C. § 3006A; see also 26 Rule 8(c), Rules Governing § 2254 Cases; Chaney, 801 F.2d at 1196. Valencia’s 27 petition indicates that he is serving five sentences of life in prison with the 28 possibility of parole, apparently amounting to 70 years to life in prison, and it 1 appears that the petition raises issues that may be relatively complex, and that 2 Valencia may suffer from mental illness and/or low intellectual functioning, such 3 that the interests of justice call for appointment of counsel. The Court will grant 4 Valencia’s motion for appointment of counsel and will appoint the Federal Public 5 Defender for the District of Nevada (FPD) to represent him. 6 The Court has examined Valencia’s petition pursuant to Rule 4 of the Rules 7 Governing Section 2254 Cases in the United States District Courts and 8 determines that it merits service upon the Respondents. The Court will order the 9 petition served upon the Respondents, and will direct the Respondents to appear, 10 but will not require any further action on the part of the Respondents at this 11 time. 12 It is therefore ordered that Petitioner’s Application to Proceed in Forma 13 Pauperis (ECF No. 1) is denied. 14 It is further ordered that the Clerk of the Court is directed to separately file 15 the Petition for Writ of Habeas Corpus (ECF No. 1-1) and the Motion for 16 Appointment of Counsel (ECF No. 1-2). 17 It is further ordered that Petitioner’s Motion for Appointment of Counsel 18 (ECF No. 1-2) is granted. The Federal Public Defender for the District of Nevada 19 (FPD) is appointed to represent the Petitioner. If the FPD is unable to represent 20 the Petitioner, because of a conflict of interest or for any other reason, alternate 21 counsel will be appointed. In either case, counsel will represent the Petitioner in 22 all federal court proceedings relating to this matter, unless allowed to withdraw. 23 It is further ordered that the Clerk of the Court is directed to electronically 24 serve upon the FPD a copy of this order, together with a copy of the Petition for 25 Writ of Habeas Corpus (ECF No. 1-1). 26 It is further ordered that the FPD will have 30 days from the date of this 27 order to file a notice of appearance, or to indicate to the Court its inability to 28 represent the Petitioner in this case. 1 It is further ordered that the Court will set a deadline for payment of the 2 || filing fee after counsel appears for the Petitioner. 3 It is further ordered that the Clerk of the Court is directed to add Aaron 4 || Ford, Attorney General of the State of Nevada, as counsel for Respondents and to 5 || provide Respondents an electronic copy of all items previously filed in this case 6 || by regenerating the Notice of Electronic Filing to the office of the Attorney General 7 || only. 8 It is further ordered that Respondents will have 30 days from the date of 9 || this order to appear in this action. Respondents will not be required to respond 10 || to the habeas petition at this time. 11 DATED THIS 224 day of December, 2022. 12 Aras jlosed Ten 13 ANNER.TRAUM 14 UNITED STATES DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28