Martinez-Orellano (Rogelio) v. Dist. Ct. (State)

 allows the district court to appoint counsel if the petitioner is unable to
comprehend the proceedings and an individual with a language barrier is
not able to comprehend the proceedings. Petitioner further argues that
the district court may appoint post-conviction counsel to assist with
discovery and discovery would be required because of the language
barrier. See NRS 34.750(1)(c). Petitioner argues that the failure to
appoint counsel to assist him in filing a petition deprives him of access to
the courts.
We decline to exercise our original jurisdiction because
petitioner has not demonstrated that the district court has exercised its
discretion in an arbitrary and capricious manner. See NRS 34.160; Int?
Game Tech., Inc. v. Second Judicial Din. Court, 124 Nev. 193, 197, 179
P.3d 556, 558 (2008). There is no recognized constitutional right to the
appointment of counsel in post-conviction proceedings. See Brown v.
McDaniel, 130 Nev., Adv. Op. 60, 331 P.3d 867, 870 (2014); see also
Coleman v. Thompson, 501 U.S. 722, 755 (1991). The appointment of post-
conviction counsel in a non-capital case is governed by NRS 34.750(1).
NRS 34.750(1) requires that a petition be filed before post-conviction
counsel can be appointed as the statutory language refers to a "petition"
and indicates that the district court may appoint counsel when the
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petition was not going to be summarily dismissed.' NRS 34.750(3) further
lends support to the requirement that a petition be filed prior to the
appointment of counsel as post-conviction counsel may file "supplemental"
pleadings. NRS 34.735 informs a petitioner that if he wants to have
counsel appointed for the post-conviction proceedings he must complete
the Affidavit in Support of Request to Proceed in Forma Pauperis. The
factors set forth in NRS 34.750(1) help guide the district court's discretion
in whether to appoint counsel after a petition has been filed, but these
factors do not require the appointment of counsel prior to the filing of a
petition. 2 And the filing of the petition is critical in one other respect—the
filing date of the petition determines the timeliness of the petition, NRS
34.726(1); an order appointing counsel would not satisfy the filing
"NRS 34.745(4) provides that the district court may summarily
dismiss a second or successive petition when it appears that the petitioner
has not demonstrated he is entitled to relief based on any of the grounds
set forth in NRS 34.810(2).
2 We agree that a language barrier may demonstrate that a
petitioner is unable to comprehend the proceedings and that the district
court should, after the filing of a petition, consider the severity of the
language barrier when deciding whether to appoint post-conviction
counsel. See generally Mendoza v. Carey, 449 F.3d 1065, 1070 (9th Cir.
2006) (recognizing that equitable tolling in the federal courts requires a
non-English-speaking petitioner demonstrate that during the time period,
the petitioner was unable to procure either legal materials in his own
language or translation assistance despite diligent efforts). We note that
the factors set forth in NRS 34.750(1) do not require the petitioner to
demonstrate that the petition is not frivolous as argued by the State
below.
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requirement of NRS 34.726(1). We further conclude that petitioner has
not demonstrated that the alternative relief requested, transcription of
every document in the record into Spanish, is required in this case.
Petitioner must file a petition to begin the post-conviction proceedings.
Prior to the filing of the petition, petitioner's requests for accommodations
are premature.
Petitioner has submitted a motion for leave to file an amended
petition for a writ of mandamus as an emergency petition for writ of
mandamus; we deny the request. Petitioner failed to demonstrate that
relief is needed in less than 14 days.
Petitioner has also submitted a motion to stay the time to file
a post-conviction petition for a writ of habeas corpus in the district court.
Petitioner relies upon tolling provisions applicable in civil cases, NRAP
8(c), and argues that those rules should apply in this case as a post-
conviction petition for a writ of habeas corpus is not strictly criminal for
all purposes and NRS 34.780(1) provides for application of the Rules of
Civil Procedure in post-conviction proceedings. We deny the motion. The
rules of civil procedure apply in post-conviction habeas proceedings to the
extent the rules are not inconsistent with the rules that govern the filing
of a post-conviction petition for a writ of habeas corpus. See NRS
34.780(1). Petitioner's request, however, is inconsistent with the rules
that govern the filing of a post-conviction petition for a writ of habeas
corpus. A post-conviction petition for a writ of habeas corpus is a
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statutory remedy and the Legislature has provided no provision for
staying the time to file a petition, see NRS 34.726(1); rather, a petitioner
must file a petition within the statutory deadline or file a late petition and
demonstrate good cause for his failure to file a timely petition, see id.
Accordingly, we
ORDER the petition DENIED. 3
Gibbons
J.
Pickering
cc: Hon. Carolyn Ellsworth, District Judge
Rogelio Martinez-Orellano, a/k/a Rogelio Martinorellan
Clark County Public Defender
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
3 It
is unclear why the district court denied the Clark County Public
Defender's request to withdraw as it appears that their representation has
come to an end.
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