Opinion
3:22-cv-00486-ART-CSD
02-03-2023
PERRY ALLISON HOOD, Petitioner, v. FERNANDEIS FRAZIER, et al., Respondents.
ORDER PROVISIONALLY APPOINTING COUNSEL
ANNE R. TRAUM UNITED STATES DISTRICT JUDGE
Perry Allison Hood submitted a pro se 28 U.S.C. § 2254 habeas corpus petition. (ECF No. 1-1.) This court reviewed the petition under Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts and directed Hood to show cause as to why the court should not dismiss his petition challenging his 2013 judgment of conviction as untimely. (ECF No. 6.)
Hood acknowledges in his response to the show-cause order that his current federal petition is untimely. (ECF No. 7.) He also states that this court has already considered a previous petition challenging the same judgment of conviction. In case no. 2:22-cv-00117-CDS-VCF (“Hood I”), on June 2, 2022, United States District Judge Cristina D. Silva denied the petition with prejudice as untimely and denied a certificate of appealability. See Hood I, ECF No. 9. Thus, Hood must obtain authorization from the Ninth Circuit before this court may consider his second or successive petition. See 28 U.S.C. § 2244(b)(3)(A) (providing “[b]efore a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application.”)
It does not appear that Hood has sought such authorization, which would make this petition an improperly filed second or successive petition. He now claims that, while he pleaded “no contest” to the charge of use of a minor in producing pornography, he is actually innocent because he lacked intent. The court concludes that counsel may be helpful in this case. The Criminal Justice Act (“CJA”), 18 U.S.C. § 3006A(a)(2), authorizes the court to appoint counsel “when the interests of justice so require.” The CJA further provides that a habeas petitioner must demonstrate financial eligibility in all circumstances where the court appoints counsel. See id. § 3006A(a) (counsel “shall be provided for any financially eligible person”) (emphasis added).
Although this court finds that the appointment of counsel is in the interests of justice, this court also recognizes that petitioner has not moved for the appointment of counsel. Thus, this court intends to provisionally appoint the Federal Public Defender (FPD) to represent petitioner in 45 days unless petitioner declares his desire that this court not appoint counsel. Moreover, if petitioner desires that counsel be appointed, he must file a complete in forma pauperis (“IFP”) application to show that he cannot afford counsel to litigate this case.
IT IS THEREFORE ORDERED that the Clerk of Court detach, file, and electronically SERVE the petition (ECF No. 1-1) on the respondents.
IT IS FURTHER ORDERED that the Clerk add Aaron D. Ford, Nevada Attorney General, as counsel for respondents and provide respondents an electronic copy of all items previously filed in this case by regenerating the Notice of Electronic Filing to the office of the AG only.
IT IS FURTHER ORDERED that the Federal Public Defender for the District of Nevada (FPD) is appointed to represent petitioner.
IT IS FURTHER ORDERED that the Clerk electronically SERVE the FPD a copy of this order, together with a copy of the petition for writ of habeas corpus (ECF No. 1). The FPD has 30 days from the date of entry of this order to file a notice of appearance or to indicate to the court its inability to represent petitioner in these proceedings.
IT IS FURTHER ORDERED that if petitioner desires the appointment of counsel, he must file an application for leave to proceed IFP within 45 days, accompanied by a signed financial certificate and a statement of his inmate account. The Clerk is directed to send petitioner a blank application form for incarcerated litigants.