Alvarez v. Wolfson ( 2024 )

DISTRICT OF NEVADA 2 3 Leo Lionel Alvarez, Case No. 2:24-cv-01255-CDS-BNW 4 Petitioner Order Denying Petitioner’s Application to Proceed and Granting 5 v. Motion for Appointment of Counsel 6 Steve B. Wolfson, et al., [ECF Nos. 1, 1-2] 7 Respondents 8 9 This action is a petition for a writ of habeas corpus, under to 28 U.S.C. § 2254, by 10 Leo Lionel Alvarez, an individual incarcerated at Nevada’s High Desert State Prison. Alvarez has 11 filed an application to proceed in forma pauperis (ECF No. 1), a petition for writ of habeas corpus 12 (ECF No. 1-1), and a motion for appointment of counsel (ECF No. 1-2). 13 The information in Alvarez’s application to proceed in forma pauperis (ECF No. 1) shows 14 that he is able to pay the $5 filing fee for this action. Therefore, the application will be denied. The 15 court will, however, defer the matter of payment of the filing fee until after appointed counsel 16 appears for Alvarez. 17 The court has examined Alvarez’s habeas petition pursuant to Rule 4 of the Rules 18 Governing Section 2254 Cases in the United States District Courts and determines that it merits 19 service upon the respondents. The court will order the petition served upon the respondents, and 20 will order the respondents to appear, but will not require any further action on the part of the 21 respondents at this time. 22 State prisoners not sentenced to death and applying for habeas corpus relief in federal 23 court are not entitled to appointed counsel unless the circumstances indicate that appointed 24 counsel is necessary to prevent due process violations. Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 25 1986) (citing Kreiling v. Field, 431 F.2d 638, 640 (9th Cir. 1970) (per curiam)). The court may, 26 however, appoint counsel at any stage of the proceedings if the interests of justice so require. See 27 18 U.S.C. § 3006A; see also Rule 8(c), Rules Governing § 2254 Cases; Chaney, 801 F.2d at 1196. The 28 court determines that the interests of justice call for appointment of counsel in this case. The 1 |}[court will grant Alvarez’s motion for appointment of counsel and will appoint the Federal Public 2 || Defender for the District of Nevada (FPD) to represent Alvarez. 3 IT IS THEREFORE ORDERED that the petitioner's application to proceed in forma 4 ||pauperis [ECF No. 1] is DENIED. 5 IT IS FURTHER ORDERED that the petitioner’s motion for appointment of counsel 6 || [ECF No. 1-2] is GRANTED. The Federal Public Defender for the District of Nevada is appointed 7 ||to represent the petitioner. If the FPD is unable to represent the petitioner, because of a conflict of 8 |/interest or any other reason, alternate counsel will be appointed. Counsel will represent the 9 ||petitioner in all federal court proceedings relating to this matter, unless allowed to withdraw. 10 IT IS FURTHER ORDERED that the Clerk of the Court is directed to electronically 1] ||serve upon the FPD a copy of this order, together with a copy of the petition for writ of habeas 12 ||corpus (ECF No. 1-1). 13 IT IS FURTHER ORDERED that the FPD will have 30 days from the date of this order to 14 ||file a notice of appearance, or to indicate to the court its inability to represent the petitioner in 15 ||this case. 16 IT IS FURTHER ORDERED that the requirement that the petitioner pay the filing fee 17 ||for this action is suspended. The court will set a deadline for the petitioner to pay the filing fee or 18 ||to file a new application to proceed in forma pauperis after appointed counsel appears for him. 19 IT IS FURTHER ORDERED that the Clerk of the Court is directed to add Aaron Ford, 20 || Attorney General of the State of Nevada, as counsel for the respondents and to provide the 21 ||respondents an electronic copy of all items previously filed in this case by regenerating the Notice 22 |\of Electronic Filing to the office of the Attorney General only. 23 IT IS FURTHER ORDERED that the respondents will have 30 days from the date of this 24 |/order to appear in this action. The respondents will not be required to respond to the habeas 25 ||petition at this time. ‘| 26 Dated: August 8, 2024 J, / 2 Li —— 28 Cnspina D. Silva YP ted States District Judge XY