Lopez-Delgado v. Garrett

[2] UNITED STATES DISTRICT COURT [3] DISTRICT OF NEVADA [4] LUIGY LOPEZ-DELGADO Case No. 3:23-cv-00412-ART-CLB [5] Petitioner, ORDER 6 v. 7 TIM GARRETT, 8 Respondents. [9] Pro se Petitioner Luigy Lopez-Delgado has filed a Petition for Writ of Habeas [10] Corpus under 28 U.S.C. § 2254 , submitted a motion for counsel, and paid his [11] filing fee. (ECF No. 1-1 (“Petition”), 4, 8.) This matter comes before the Court for [12] initial review of the Petition under the Rules Governing Section 2254 Cases [13] (“Habeas Rules”) and for consideration of Lopez-Delgado’s motion. For the [14] reasons discussed below, this Court directs service of the Petition and grants [15] Lopez-Delgado’s motion. [16] I. BACKGROUND1 [17] Lopez-Delgado challenges a conviction and sentence imposed by the [18] Second Judicial District Court for Washoe County (“state court”). State v. Luigy [19] Richard Lopez-Delgado, Case No. CR18-1654. On March 15, 2019, March 18, [20] 2019, April 8, 2019, February 11, 2020, the state court entered a judgment of [21] conviction, corrected judgment of conviction, second corrected judgment of [22] conviction, and third corrected judgment of conviction, respectively. Lopez23 Delgado pleaded guilty to statutory sexual seduction by a person 21 years of age [24] or older, possession of visual pornography of a person under 16 years of age, and [26] 1 The Court takes judicial notice of the online docket records of the Second 27 Judicial District Court and Nevada appellate courts. These docket records may be accessed online: https://www.washoecourts.com/Query/DetailedCaseSearch 28 and http://caseinfo.nvsupremecourt.us/public/caseSearch.do. 1 lewdness on a child older than 14 years of age. Lopez-Delgado was sentenced to 2 76 to 192 months in prison. Lopez-Delgado appealed, and the Nevada Court of 3 Appeals affirmed on February 18, 2020. Remittitur issued on March 16, 2020. 4 On May 13, 2020, Lopez-Delgado moved to vacate his judgment of 5 conviction and to withdraw his guilty plea. And on June 10, 2020, Lopez-Delgado 6 filed a pro se state petition for writ of habeas corpus. The state court dismissed 7 the petition, Lopez-Delgado appealed, and the Nevada Court of Appeals affirmed 8 on September 14, 2022. Remittitur issued on October 10, 2022. On December 9 30, 2022, Lopez-Delgado moved to correct his illegal sentence. The state court 10 denied the motion on March 30, 2023. 11 On August 23, 2023, Lopez-Delgado transmitted his instant Petition. 12 II. DISCUSSION 13 Habeas Rule 4 requires the assigned judge to examine the habeas petition 14 and order a response unless it “plainly appears” that the petition is not entitled 15 to relief. See Valdez v. Montgomery, 918 F.3d 687, 693 (9th Cir. 2019). This rule 16 allows courts to screen and dismiss petitions that are patently frivolous, vague, 17 conclusory, palpably incredible, false, or plagued by procedural defects. Boyd v. 18 Thompson, 147 F.3d 1124, 1128 (9th Cir. 1998); Hendricks v. Vasquez, 908 F.2d 19 490, 491 (9th Cir. 1990) (collecting cases). This Court finds that a response is 20 warranted in the instant case. 21 This Court now turns to Lopez-Delgado’s motion for the appointment of 22 counsel. (ECF No. 4.) There is no constitutional right to appointed counsel for a 23 federal habeas corpus proceeding. Pennsylvania v. Finley, 481 U.S. 551 , 555 24 (1987); Luna v. Kernan, 784 F.3d 640, 642 (9th Cir. 2015) (citing Lawrence v. 25 Florida, 549 U.S. 327, 336–37 (2007)). An indigent petitioner may request 26 appointed counsel to pursue that relief. 18 U.S.C. § 3006A(a)(2)(B). The decision 27 to appoint counsel is generally discretionary. Id. (authorizing appointed counsel 28 when “the interests of justice so require”). However, counsel must be appointed 1 if the complexities of the case are such that denial of counsel would amount to a 2 denial of due process, and where the petitioner is a person of such limited 3 education as to be incapable of fairly presenting his claims. LaMere v. Risley, 827 4 F.2d 622, 626 (9th Cir. 1987); Brown v. United States, 623 F.2d 54, 61 (9th Cir. 5 1980). Following review of the Petition and the motion for appointment of counsel, 6 the Court will provisionally appoint the Federal Public Defender to represent 7 Lopez-Delgado. The Court finds that appointment of counsel is in the interests of 8 justice. 9 III. CONCLUSION 10 It is therefore ordered that the clerk (1) file the 28 U.S.C. § 2254 habeas 11 petition (ECF No. 1-1), (2) add Aaron Ford, Attorney General of the State of 12 Nevada, as counsel for Respondents, (3) electronically serve Respondents’ counsel 13 a copy of the Petition (ECF No. 1-1), (4) electronically provide Respondents’ 14 counsel a copy of this order and copies of all items previously filed in this case 15 by regenerating the Notices of Electronic Filing, (5) serve the Federal Public 16 Defender a copy of this order and the Petition (ECF No. 1-1), and (6) send a copy 17 of this order to Lopez-Delgado and the CJA Coordinator for this division. 18 It is further ordered that Respondents’ counsel enter a notice of appearance 19 within 21 days of entry of this order. No further response will be required until 20 further order. 21 It is further ordered that the motion for appointment of counsel (ECF No. 22 4) is granted. The Federal Public Defender is provisionally appointed as counsel 23 and will have 30 days to (1) undertake direct representation of Lopez-Delgado by 24 filing a notice of appearance or (2) indicate the office’s inability to represent Lopez25 Delgado in these proceedings. If the Federal Public Defender is unable to 26 represent Lopez-Delgado, the Court will appoint alternate counsel. Appointed 27 counsel will represent Lopez-Delgado in all federal proceedings related to this 28 matter, including any appeals or certiorari proceedings, unless allowed to 1 || withdraw. A deadline for the filing of an amended petition and/or seeking other 2 || relief will be set after counsel has entered an appearance. The Court anticipates 3 || a deadline of approximately 90 days from entry of the formal order of 4 || appointment. 5 It is further ordered that any deadline established and/or any extension 6 || thereof will not signify any implied finding of a basis for tolling during the time 7 || period established. Lopez-Delgado remains responsible for calculating the 8 || running of the federal limitation period and timely presenting claims. That is, by 9 || setting a deadline to amend the petition and/or by granting any extension 10 || thereof, this Court makes no finding or representation that the petition, any 11 |} amendments thereto, and/or any claims contained therein are not subject to 12 || dismissal as untimely. See Sossa v. Diaz, 729 F.3d 1225, 1235 (9th Cir. 2013). [14] 15 DATED THIS 20t day of October 2023. [16] 17 on Apo Waseed 19 UNITED STATES DISTRICT JUDGE