Rodriguez v. State of Nevada ( 2024 )

1 2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 ELMER RODRIGUEZ, Case No. 3:24-cv-00032-ART-CSD 5 Petitioner, ORDER 6 v. 7 STATE OF NEVADA, et al., 8 Respondents. 9 10 This action is a petition for a writ of habeas corpus under 28 U.S.C. § 2254 11 by Elmer Rodriguez, an individual incarcerated at Nevada’s Lovelock Correctional 12 Center. On January 19, 2024, Rodriguez, pro se, filed an Application to Proceed 13 in Forma Pauperis (ECF No. 1) and he submitted for filing a Petition for Writ of 14 Habeas Corpus (ECF No. 1-1), and on January 23, 2024, he filed a Motion for 15 Appointment of Counsel (ECF No. 3). 16 The financial certificate filed with Rodriguez’s in forma pauperis application 17 shows that he is able to pay the $5 filing fee for this action. His in forma pauperis 18 application will therefore be denied. However, the Court will not set a deadline for 19 Rodriguez to pay the filing fee or file a new in forma pauperis application until 20 after appointed counsel appears for him. 21 The Court has examined Rodriguez’s petition as mandated by Rule 4 of the 22 Rules Governing Section 2254 Cases in the United States District Courts and 23 determines that it merits service upon the respondents. The Court will order the 24 petition served upon the respondents, and will direct the respondents to appear, 25 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 27 appointed counsel unless the circumstances indicate that appointed counsel is 28 necessary to prevent due process violations. Chaney v. Lewis, 801 F.2d 1191, 1 1196 (9th Cir. 1986) (citing Kreiling v. Field, 431 F.2d 638, 640 (9th Cir. 1970) 2 (per curiam)). The Court may, however, appoint counsel at any stage of the 3 proceedings if the interests of justice so require. See 18 U.S.C. § 3006A; see also 4 Rule 8(c), Rules Governing § 2254 Cases; Chaney, 801 F.2d at 1196. The Court 5 determines that the interests of justice call for appointment of counsel in this 6 case. The Court will grant Rodriguez’s Motion for Appointment of Counsel and 7 will appoint the Federal Public Defender for the District of Nevada (FPD) to 8 represent him. 9 It is therefore ordered that Petitioner’s Application to Proceed in Forma 10 Pauperis (ECF No. 1) is denied. 11 It is further ordered that Petitioner’s Motion for Appointment of Counsel 12 (ECF No. 3) is granted. The Federal Public Defender for the District of Nevada 13 (FPD) is appointed to represent the petitioner. If the FPD is unable to represent 14 the petitioner, because of a conflict of interest or any other reason, alternate 15 counsel will be appointed. Counsel will represent Petitioner in all federal court 16 proceedings relating to this matter, unless allowed to withdraw. 17 It is further ordered that the Clerk of the Court is directed to electronically 18 serve upon the FPD a copy of this order, together with a copy of the Petition for 19 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 21 order to file a notice of appearance, or to indicate to the Court its inability to 22 represent Petitioner in this case. 23 It is further ordered that the Clerk of the Court is directed to add Aaron 24 Ford, Attorney General of the State of Nevada, as counsel for Respondents and to 25 provide Respondents an electronic copy of all items previously filed in this case 26 by regenerating the Notice of Electronic Filing to the office of the Attorney General 27 only. 28 1 It is further ordered that Respondents will have 30 days from the date of 2 || this order to appear in this action. Respondents will not be required to respond 3 || to the habeas petition at this time. 4 5 6 DATED THIS 25th day of January 2024. 8 ANNER TRAUM 9 UNITED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28