Alfaro v. Johnson ( 2024 )

1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 RENE GEOVANY ALFARO, Case No. 2:21-cv-01831-RFB-DJA 6 Petitioner, v. ORDER 7 WARDEN CALVIN JOHNSON, et al., 8 Respondents. 9 10 Before the Court are Petitioner Rene Geovany Alfaro’s Motion to Reopen Case (ECF No. 11 14), Motion for Appointment of Counsel (ECF No. 15), Motion to Acquire Documents (ECF No. 12 19), and Motion to Acquire Status of Federal Habeas Corpus (ECF No. 20). 13 Alfaro challenges a conviction and sentence imposed by the Eighth Judicial District Court 14 for Clark County (“state court”). State of Nevada v. Rene Geovany Alfaro, Case No. C-16- 15 314818-1. On April 17, 2019, the state court entered a judgment of conviction for voluntary 16 manslaughter with use of a deadly weapon and ownership or possession of firearm by prohibited 17 person. Alfaro appealed and the Nevada Court of Appeals reversed and remanded to the state 18 district court with instructions to conduct a restitution hearing. On October 20, 2020, the state court 19 entered an amended judgment of conviction and sentenced Alfaro to 48 to 120 months for 20 voluntary manslaughter with a consecutive enhancement of 48 to 120 months for the use of a 21 deadly weapon as well as a concurrent term of 28 to 72 months for the ownership or possession of 22 firearm by prohibited person. 23 On January 27, 2020, Alfaro filed a state petition for writ of habeas corpus. Rene Alfaro 24 v. Brian Williams, Case No. A-20-809250-W. The state court denied post-conviction relief. On 25 February 2, 2022, Alfaro filed another state petition for writ of habeas corpus. Rene Alfaro v. 26 Calvin Johnson, Case No. A-22-847660-W. On October 5, 2021, Alfaro initiated this federal 27 habeas corpus proceeding. ECF No. 1. 28 Because Alfaro acknowledged that he had not presented any claims alleged in his federal 1 habeas petition to the Nevada appellate courts and that his second state habeas petition remained 2 pending in state court, the Court instructed Alfaro to show cause why this action should not be 3 dismissed because of his failure to exhaust in state court. ECF No. 8. In his response, Alfaro 4 asserted he had been appointed counsel in his state court postconviction proceedings and requested 5 a stay to exhaust his claims in state court. ECF No. 10. The Court granted his request to stay the 6 case pending exhaustion of his claims in state court. ECF No. 11. Alfaro now moves to reopen 7 these federal habeas proceedings and requests appointment of counsel. 8 The Court finds that appointment of counsel is in the interests of justice taking into account, 9 inter alia, the lengthy sentence structure, and the number and complexity of potential claims. 10 Alfaro commenced this federal action indicating that his claims were not exhausted in state court. 11 Given the myriad of potential procedural obstacles Alfaro’s situation presents, his request for 12 appointment of counsel accordingly is granted. 13 IT IS THEREFORE ORDERED: 14 1. Petitioner Rene Geovany Alfaro’s Motion to Reopen Case (ECF No. 14) is 15 GRANTED. The stay is lifted, and the Clerk of the Court is directed to reopen this 16 case. 17 2. Alfaro’s Motion for Appointment of Counsel (ECF No. 15) is GRANTED. 18 3. Alfaro’s Motion to Acquire Documents (ECF No. 19), and Motion to Acquire Status 19 of Federal Habeas Corpus (ECF No. 20) are DENIED as moot. 20 4. The Federal Public Defender is provisionally appointed as counsel and will have 30 21 days to undertake direct representation of Petitioner or to indicate the office’s inability 22 to represent Petitioner in these proceedings. If the Federal Public Defender is unable 23 to represent Petitioner, the Court will appoint alternate counsel. The counsel appointed 24 will represent Petitioner in all federal proceedings related to this matter, including any 25 appeals or certiorari proceedings, unless allowed to withdraw. A deadline for the filing 26 of an amended petition and/or seeking other relief will be set after counsel has entered 27 an appearance. The Court anticipates a deadline of approximately 60 days from entry 28 of the formal order of appointment. ] 5. Any deadline established and/or any extension thereof will not signify any implied 2 finding of a basis for tolling during the time period established. Petitioner at all times 3 remains responsible for calculating the running of the federal limitation period and 4 timely presenting claims. That is, by setting a deadline to amend the petition and/or by 5 granting any extension thereof, the Court makes no finding or representation that the 6 petition, any amendments thereto, and/or any claims contained therein are not subject 7 to dismissal as untimely. See Sossa v. Diaz, 729 F.3d 1225, 1235 (9th Cir. 2013). 8 6. The Clerk of Court is directed to add Nevada Attorney General Aaron D. Ford as 9 counsel for Respondents and to provide Respondents an electronic copy of all items 10 previously filed in this case by regenerating the Notice of Electronic Filing to the office 11 of the AG only. Respondents’ counsel must enter a notice of appearance within 21 12 days of entry of this order, but no further response will be required from Respondents 13 until further order of the Court. 14 7. The Clerk of Court is further directed to send a copy of this order to the pro se 15 Petitioner, the Nevada Attorney General, the Federal Public Defender, and the CJA 16 Coordinator for this division. 17 DATED: September 30, 2024 18 RICHARD F. BOULWARE, II 21 UNITED STATES DISTRICT JUDGE 22 23 24 25 26 27 28