Opinion
3:10-cv-00647-ECR-RAM.
November 23, 2010
ORDER
This habeas matter under 28 U.S.C. § 2254 comes before the Court on petitioner's application (#1) to proceed in forma pauperis, his motion (#3) for a writ of habeas corpus, and his motion for appointment of counsel submitted with the petition.
On the application to proceed in forma pauperis, the Court finds that petitioner is unable to pay the $5.00 filing fee, and the application therefore will be granted.
The motion for a writ of habeas corpus will be denied. The Clerk advised petitioner when the case was filed that it could take several weeks to reach the petition for screening.
Following review of the counsel motion and accompanying papers, the Court finds that the interests of justice warrant the appointment of counsel, in light of: (a) the minimum consecutive sentence of thirty years imposed with a likely start date in or around 2003 as compared to petitioner's current age of approximately 73 years as reflected by the NDOC website; (b) the possibility that — depending upon the status of the proceedings in the state courts — there may be time remaining in the federal one-year limitation period for the assertion of claims; (c) the presentation of a competency issue on direct appeal, as reflected by the unpublished decision in Navas v. State, 2008 WL 6113399, 238 P.3d 841 (Nev., Dec. 12, 2008) (table); (d) the number and complexity of the potential claims and procedural issues; and (e) the degree of ability demonstrated by petitioner to adequately articulate cogent claims in the papers presented.
The Court emphasizes — given the scope of the request presented in the motion for appointment of counsel and the allegations of the petition — that the appointment extends only to proceedings related to this matter that challenge petitioner's judgments of conviction. Counsel is not being appointed to pursue claims for damages, civil rights claims, divorce or other family law matters, immigration matters, bankruptcy matters, or any matter other than a challenge to petitioner's convictions and sentences. The counsel appointed otherwise will represent petitioner in all proceedings related to this matter, including any appeals or certiorari proceedings, unless allowed to withdraw.
IT THEREFORE IS ORDERED that the application (#1) to proceed in forma pauperis is GRANTED such that petitioner will not be required to pay the $5.00 filing fee.
IT FURTHER IS ORDERED that the motion (#3) for a writ of habeas corpus is DENIED.
IT FURTHER IS ORDERED that the Clerk of Court shall file the petition and accompanying motion for appointment of counsel, that the motion for counsel is GRANTED, and that the Clerk shall reflect in the docket entry for the motion that the motion is granted by this order.
The filing of the petition does not signify that either the petition or the claims therein otherwise are free of deficiencies.
IT FURTHER IS ORDERED that the Federal Public Defender for the District of Nevada shall have thirty (30) days to undertake direct representation of the petitioner or to indicate to the Court her office's inability to represent the petitioner in these proceedings. If the Federal Public Defender is unable to represent petitioner, the Court then shall appoint alternate counsel. A deadline for the filing of an amended petition will be set after counsel has filed a notice of appearance, in the order confirming the specific appointment. The Court anticipates setting the deadline for 150 days based upon the current record.
IT FURTHER IS ORDERED, so that the respondents may be electronically served with any amended petition and exhibits filed through counsel, that the Clerk of Court shall add Attorney General Catherine Cortez Masto as counsel for respondents and shall make informal electronic service of this order upon respondents by directing a notice of electronic filing to her. Respondents' counsel shall enter a notice of appearance herein within twenty (20) days of entry of this order, but no further response shall be required from respondents until further order of this Court.
The Clerk of Court accordingly shall send a copy of this order (together with attachments containing a copy of the petition, the motion for appointment of counsel, and the motion for a writ of habeas corpus) to the pro se petitioner, the Attorney General, the Federal Public Defender, and the CJA Coordinator for this Division.
DATED: November 23, 2010
Exhibit
UNITED STATES DISTRICT COURT DISTRICT OF NEVADA ORDER
JULIO CESAR NAVAS, Plaintiff, Case No. 3:06-CV-00457-LRH-(VPC) vs. CARL HYLIN, et al., Defendants. Plaintiff has paid the initial partial filing fee. The Court has reviewed his Complaint and finds that it requires amendment.When a "prisoner seeks redress from a governmental entity or officer or employee of a governmental entity," the Court must "identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief." 28 U.S.C. § 1915A(b). Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for dismissal of a complaint for failure to state a claim upon which relief can be granted. Review under Rule 12(b)(6) is essentially a ruling on a question of law. North Star Intern. v. Arizona Corp. Comm'n, 720 F.2d 578, 580 (9th Cir. 1983). In considering whether the plaintiff has stated a claim upon which relief can be granted, all material allegations in the complaint are accepted as true and are to be construed in the light most favorable to the plaintiff. Russell v. Landrieu, 621 F.2d 1037, 1039 (9th Cir. 1980). Allegations of a pro se complainant are held to less stringent standards than formal pleadings drafted by lawyers.Haines v. Kemer, 404 U.S. 519, 520 (1972) (per curiam).
Plaintiff alleges that he was a defendant in two consolidated cases in the Second Judicial District Court of the State of Nevada. He retained Defendant Carl Hylin to represent him. Plaintiff entered pleas of no contest in both cases. At the sentencing hearing on September 24, 2003, Plaintiff told the court that he wanted to move to withdraw his pleas. Hylin told the court that he would not file any such motions because he did not believe that the pleas were deficient. Plaintiff appealed. On or before January 15, 2004, Plaintiff learned that Defendant Michael Specchio, the Washoe County Public Defender, had hired Hylin. After Hylin had filed the required documents on appeal, the Nevada Supreme Court remanded for appointment of another counsel. The district court appointed Kenneth Stover. The appeal was successful, and the Nevada Supreme Court remanded to allow Plaintiff to move to withdraw his pleas.
Plaintiff has sued both Hylin and Specchio pursuant to 42 U.S.C. § 1983. Plaintiff's claim against Hylin is that:
As a result of defense counsel, Carl F. Hylin's ineffectiveness in his representation of the Plaintiff's interests, prior to and at his sentencing proceedings; as well as counsel's failure to protect Plaintiff's U.S. Constitutional Rights in encouraging the District Court to determine not only that there was a factual and intelligent basis for his nolo contendere pleas but, to further inquire into and seek to resolve the conflict between the waiver of trial and claim of innocence, Plaintiff was ultimately tried, convicted, and sentenced to a term of incarceration in the Nevada Department of Corrections, as an innocent person, due to Counsel's failure to investigate Plaintiff's information and evidence which otherwise, would have proven Plaintiff's claim of innocence.
Compl., pp. 7-8. Plaintiff's claim against Specchio is that:
Defendant, Michael R. Specchio, negligently and carelessly employed, retained, and failed to properly supervise, train and control said employee/defendant, Carl F. Hylin, while said employee/defendant worked and performed duties and cases assigned him by Defendant, Michael R. Specchio, for the Washoe County Public Defender's Office, City of Reno, County of Washoe, State of Nevada."
Compl., pp 5-6. Court records show that Plaintiff did go to trial after the Nevada Supreme Court remanded, and that the jury found him guilty. State v. Navas, Case Nos. CR02-2190, CR03-0647,http://www.washoecourts.com/ (report generated April 24, 2007).
Plaintiff's allegations about Hylin concern Hylin's decisions while he represented Plaintiff. Either as a private retained counsel or as a public defender, Hylin did not act under color of state law for the purposes of 42 U.S.C. § 1983. Miranda v. Clark County, 319 F.3d 465, 468 (9th Cir. 2003) (en banc); Price v. Hawaii, 939 F.2d 702, 707-08 (9th Cir. 1991).
It is unclear whether Plaintiff can state a claim against Specchio. The failure of the county public defender to train a subordinate can amount to action under color of state law.Miranda, 319 F.3d at 471. However, Hylin was a private retained counsel for at least part of the time he spent representing Plaintiff, and the public defender cannot be held liable for the failure to train a subordinate attorney at a time when that attorney did not work for the public defender. Plaintiff needs to allege facts that show that Hylin worked for Specchio at the time that Hylin refused to move to withdraw Plaintiff's guilty plea, on September 24, 2003.
IT IS THEREFORE ORDERED that the Clerk of the Court shall file the Complaint.
IT IS FURTHER ORDERED that the Complaint is DISMISSED for failure to state a claim upon which relief can be granted, with leave to amend. The Clerk shall send to Plaintiff a civil rights complaint form with instructions. Plaintiff will have thirty (30) days from the date that this Order is entered to submit his amended complaint, if he believes that he can correct the noted deficiencies. Failure to comply with this Order will result in the dismissal of this action.
DATED this 24th day of April, 2007.
___________________________ LARRY R. HICKS UNITED STATES DISTRICT JUDGE IN THE SUPREME COURT OF THE STATE OF NEVADA JULIO CESAR NAVAS, No. 42159 Appellant, vs. THE STATE OF NEVADA, Respondent.ORDER
This appeal is subject to the provisions of Nevada Rule of Appellate Procedure 3C. This appeal was docketed in this court on October 9, 2003. The fast track statement was due to be filed no later than November 18, 2003. To date, no fast track statement has been filed. Appellant's counsel Carl F. Hylin shall file and serve the fast track statement and appendix within ten (10) days of this order or show cause why counsel for appellant should not be sanctioned.It is so ORDERED.
_____________________, C.J. cc: Carl F. Hylin Attorney General Brian Sandoval/Carson City Washoe County District Attorney Richard A. Gammick IN THE SUPREME COURT OF THE STATE OF NEVADA JULIO CESAR NAVAS, No. 46786 Appellant, vs. THE STATE OF NEVADA, Respondent. JULIO CESAR NAVAS, No. 46788 Appellant, vs. THE STATE OF NEVADA, Respondent.ORDER DISMISSING APPEALS
These appeals were initiated by proper person notices of appeal. Second Judicial District Court, Washoe County; Jerome Polaha, Judge. We elect to consolidate these appeals for disposition.This court's preliminary review of these appeals reveals jurisdictional defects. On February 2, 2006, appellant filed proper person notices of appeal in the district court. The notices of appeal are unintelligible and fail to designate any appealable orders. To the extent that appellant is attempting to appeal from decisions of the district court made during the criminal proceedings pending in the district court, appellant is cautioned that he may not independently appeal from such decisions. Rather, if appellant is convicted, appellant may raise any claims relating to the trial proceedings on direct appeal. Accordingly, we
See NRS 177.015(3).
See NRS 177.045.
ORDER these appeals DISMISSED.
We have received all proper person documents submitted in these matters, and we conclude that no relief is warranted.
ORDER DENYING REHEARING
Rehearing denied. NRAP 40(c).It is so ORDERED.
___________________________, J. Douglas ___________________________, J. Becker ___________________________, J. Parraguirre cc: Hon. Jerome Polaha, District Judge Attorney General George Chanos/Carson City Julio Cesar Navas Washoe County District Attorney Richard A. Gammick Washoe District Court Clerk January 26, 2005Julio Cesar Navas
P.O. Box 7000
Carson City, NV 89702-7000
Dear Mr. Navas,
Congratulations on our victory! Enclosed please find a copy of the Order Vacating Judgments and Remanding in regards to your pending court matter. Please review and retain for your records.
If you have any questions, please call this office.
Sincerely,
Kenneth A. Stover, Esq.
KAS/pbs
Exhibit
CODE 2490 Kenneth A. Stover #005792 P.O. Box 3072 Reno, Nevada 89505 (775) 329-4554 Attorney for Defendant IN THE SECOND JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA IN AND FOR THE COUNTY OF WASHOE * * * * * * THE STATE OF NEVADA, Plaintiff, Case No. CR03-0647/02-2190 vs. Dept. No. 3 JULIO CESAR NAVAS, Defendant.MOTION TO WITHDRAW PLEA
JULIO CESAR NAVAS, by and through his attorney, KENNETH A. STOVER, ESQ., appointed counsel, hereby files this Motion to Withdraw Plea in the above-entitled cases. This Motion is made and based upon the following points and authorities, upon the papers and pleadings on file herein, and on such oral or documentary evidence as may be received by the court upon hearing this motion. Further, this motion is made in good faith, and not for the purposes of delay.RESPECTFULLY SUBMITTED this 31 day of May, 2005.
___________________________ Kenneth A. Stover, Esq.POINTS AND AUTHORITIES
A colloquy between the judge and the defendant regarding a guilty plea is a necessary predicate to the court accepting a plea as freely, voluntarily, and knowingly entered:
"[T]he acceptance of a plea of guilty is a solemn duty and that a colloquy between a judge and a defendant is necessary before a judge can accept a plea of guilty. A colloquy is a constitutuional mandate to ensure that a court has sufficient information to conclude that a defendant understands the consequences of a plea as well as the nature of the offenses. Only then can a court determine that the defendant has freely, voluntarily and knowingly decided to plead guilty." State v. Freese, 116 Nev. 1097, 1105, 13 P.3d 442, 447 (2000) (emphasis added).
A defendant may file a motion to withdraw a plea before sentencing. NRS 176.165. A more lenient standard applies to motions filed prior to sentencing than to motions filed after sentencing. See Molina v. State, 120 Nev. Adv. Op. No. 21, 87 P.3d 533, 537 (2004), citing, Kirksey v. State, 112 Nev. 980, 988, 923 P.2d 1102, 1107 (1996).
A district court may grant a presentence motion in its discretion for any substantial reason and if it is fair and just.Id. On July 23, 2003 the defendant requested this Court accept his change of pleas to four of the five counts filed in the two Informations. He requested that the Court accept his plea of nolo contendere to these charges. The Court subsequently canvassed the defendant and accepted his pleas. However, the Court failed to personally canvass the defendant on the conflict between professing innocence and accepting criminal liability.
See Attached Transcript of Change of Plea July 23, 2003 (Exhibit "A").
1. The pleas of nolo contendere must be withdrawn as the change of plea transcript fails to demonstrate a colloquy between the defendant and the court regarding the conflict between professing innocence and accepting liability.
A plea of no contest, includes the reservation of denying the underlying facts of the charge. It is in no instance an express admission of guilt Gomes v. State, 112 Nev. 1473, 1479, 930 P.2d 701, 705 (1996). Therefore, when engaging in the determination of whether or not a defendant's no contest plea is freely and voluntarily entered, a district court must attempt to resolve the waiver of trial with the claim of innocence.
"In accepting an Alford plea or plea of nolo contendere, a district court must determine not only that there is a factual basis for the plea but `must further inquire into and seek to resolve the conflict between the waiver of trial and the claim of innocence.'" Gomes, supra at 1481, 930 P.2d at 706; Citing Tiger v. State, 98 Nev. 555, 558, 654 P.2d 1031, 1033 (1982) (emphasis added). In the case at bar, the court did not seek to resolve the conflict between the waiver of trial and his claim of innocence by way of a no contest plea. Instead, the court relied on the representation of defense counsel and avoided a colloquy with the defendant on his claim. This missing colloquy fails to satisfy the requirement that the court seek to resolve the conflict Without this colloquy and with the other factors of this case taken into account, this court cannot conclude that the defendant's pleas were voluntarily, knowingly, or intelligently entered. Accordingly, the defendant should be allowed to withdraw his pleas.
This colloquy need be no more than the following:
Court: And understanding that the plea of no contest carries with it criminal liability, why would you maintain your innocence yet accept criminal punishment?
Defendant: I don't wish to risk being convicted of a greater offense and the prosecutor has agreed not to pursue those charges.
2. Trial counsel was ineffective in representing the defendant's interest prior to and at sentencing.
"A defendant who pleads guilty upon the advice of counsel may attack the validity of the guilty plea by showing that he received ineffective assistance of counsel under the Sixth Amendment to the United States Constitution." Nollette v. State, 118 Nev. 341, 348-49, 46 P.3d 87, 92 (2002). "To establish prejudice in the context of a challenge to a guilty plea based upon an assertion of ineffective assistance of counsel, a defendant must `demonstrate a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.'"Molina v. State, 120 Nev. Adv. Rep. 21, 87 P.3d 533, 537 (2004). In the case at bar, the defendant asserts that trial counsel was ineffective not only in his representation at the plea stage, but further evidenced in his representation of the defendant prior to sentencing in refusing to file a motion to withdraw plea. In lieu of advocacy, defense counsel asserted at sentencing that he saw no reason why he should file such a motion notwithstanding his client's desire to withdraw his pleas and proceed to trial. The defendant submits that based on Molina, the defendant's trial counsel fell below an objectively reasonable standard of care in failing to file a motion to withdraw plea. "But for" this failure, the defendant would have had the opportunity to withdraw his plea and proceed to trial.
CONCLUSION
The defendant submits that the pleas of nolo contendere must be withdrawn as the change of plea transcript is void of any colloquy between the defendant and the court regarding the conflict between accepting criminal liability and maintaining innocence. This is no small error but rather strikes at the heart of the finding of voluntariness. This error is further evidenced in the defendant's desires and attempts to get his pleas withdrawn prior to sentencing. Notwithstanding his demands, trial counsel refused to file such a motion and dismissed it out-of-hand at sentencing. This failure to pursue the requests of the defendant has already been noted by the Nevada Supreme Court. It is clear that counsel was ineffective prior to sentencing. It stands as clear evidence that his representations prior to a change of plea also did not serve the defendant's interests. For these reasons, the defendant respectfully submits that this Motion to Withdraw Plea be granted as it is "fair and just."RESPECTFULLY SUBMITTED this 31 day of March, 2005.
________________________ Kenneth A. Stover, Esq. Bar # 5792 P.O. Box 3072 Reno, Nevada 89505 (775) 329-4554 ATTORNEY FOR DEFENDANTCERTIFICATE OF PERSONAL SERVICE
PURSUANT TO NRCP 5(b), I certify that I am an employee of the Law Offices of KENNETH A. STOVER, and on this date, I delivered a copy of the following;31st May MOTION TO WITHDRAW PLEA aT: WASHOE COUNTY DISTRICT ATTORNEY SECOND JUDICIAL DISTRICT COURTHOUSE SECOND FLOOR ATTN: REBECCA DRUCKMAN DATED THIS day of , 2005. By: _______________________________________________________ IN THE SUPREME COURT OF THE STATE OF NEVADA JULIO CESAR NAVAS, Appellant, vs. No. 42158 THE STATE OF NEVADA, Respondent. JULIO CESAR NAVAS, Appellant, vs. No. 42159 THE STATE OF NEVADA, Respondent.SUPPLEMENTAL FAST-TRACK STATEMENT
APPELLANT, JULIO CESAR NAVAS, by and through his attorney, Kenneth A. Stover, Esq., hereby files this supplemental fast track statement pursuant to N.R.A.P. 3C and the previous order of this court. This supplement raises two issues that were not previously addressed in the fast-track statement.1. The appellant's no contest pleas were not freely, voluntarily, or intelligently entered.
"[T]he acceptance of a plea of guilty is a solemn duty and that a colloquy between a judge and a defendant is necessary before a judge can accept a plea of guilty. A colloquy is a constitutional mandate to ensure that a court has sufficient information to conclude that a defendant understands the consequences of a plea as well as the nature of the offenses. Only then can a court determine that the defendant has freely, voluntarily and knowingly decided to plead guilty." The totality of the circumstances test is the standard for reviewing the validity of the plea. A reviewing court "cannot be constrained to look only to the technical sufficiency of a plea canvass to determine whether a plea has been entered with a true understanding of the nature of the offense charged. . . . an appellate court should review the entire record, and look to the totality of the facts and circumstances of a defendant's case, to determine whether a defendant entered his plea with an actual understanding of the nature of the charge against him."
State v. Freese, 116 Nev. 1097, 1105, 13 P.3d 442, 447 (2000).
Bryant v. State, 102 Nev. 268, 721 P.2d 364 (1986).
Freese, supra, at 1104, 447.
While appellant concedes that the traditional procedural method for challenging the validity of a guilty plea is in the district court, the appellant asserts that this appeal should include a review of the issues asserted on appeal as the appellant had requested, and trial counsel had refused to file a motion to withdraw plea. A defendant must normally raise the challenge of a guilty plea first in district court by either a motion to withdraw plea or a petition for post-conviction relief. In this instance, appellant asserts that this court should review this issue on appeal as the issue was raised informally prior to sentencing. As the court understood the defendant's desire to withdraw his plea at sentencing, the court placed on the record that it had reviewed the transcript of the defendant's change of plea hearing, and concluded that there was no merit to a motion to withdraw plea. This ruling demonstrates a consideration of what was an informal review of defendant's desire to withdraw his plea. Therefore, the appellant submits that this court on appeal should review the validity of the defendant's no contest plea as the issue has been raised in the district court.
Bryant, supra at 367-68.
(Record on Appeal, hereinafter "ROA"/Transcript of Sentencing p. 3, ll. 16-24 to p. 4 ll. 1-11).
ROA Transcript of Sentencing p. 4, ll. 15-20.
Moreover, appellant asserts that in this case, if Bryant doesn't apply, there are compelling reasons for treating this issue in this case as an exception to Bryant. This court has previously deviated from Bryant, when compelling reasons present themselves. The compelling reasons that present themselves in the case at bar include the arguments listed above that demonstrated that the defendant desired a motion to withdraw plea be filed and his counsel's refusal to seek the same; comments on the record from counsel as well as the court indicate that the matter was, albeit summarily, considered and denied. As well, there is further compelling reasons to entertain this claim on appeal as the colloquy engaged in between the court and the defendant at the change of plea hearing failed to include a colloquy as to the defendant's plea of no contest.
See, Lyons v. State, 105 Nev. 317, 775 P.2d 219 (1989).
ROA Transcript of Sentencing p. 3-4.
b. The trial court failed to address the defendant to resolve the conflict between the waiver of trial and the claim of innocence .
A plea of no contest, includes the reservation of denying the underlying facts of the charge. It is in no instance an express admission of guilt. Therefore, when engaging in the determination of whether or not a defendant's no contest plea is freely and voluntarily entered, a district court must attempt to resolve the waiver of trial with the claim of innocence. "In accepting an Alford plea or plea of nolo contendere, a district court must determine not only that there is a factual basis for the plea but `must further inquire into and seek to resolve the conflict between the waiver of trial and the claim of innocence.'" In the case at bar, the court did not seek to resolve the conflict between the waiver of trial and his claim of innocence by way of a no contest plea. Instead, the court relied on the representation of defense counsel and avoided a colloquy with the defendant on his claim. This violates the requirement that the court seek to resolve the conflict. This fact, taken into the totality of the circumstances calculus indicates that the defendant's entry of plea of no contest was not freely, voluntarily, or intelligently entered and the appellant asserts that he should be allowed to withdraw his plea of no contest.
Gomes v. State, 112 Nev. 1473, 1479, 930 P.2d 701, 705 (1996).
Id, at 1481, 706. Citing Tiger v. State, 98 Nev. 555, 558, 654 P.2d 1031, 1033 (1982) (emphasis added).
See, ROA Transcript of Change of Plea, July 23, 2003 pp. 10-18.
2. Trial counsel was ineffective in representing the appellant's interest prior to and at sentencing.
"A defendant who pleads guilty upon the advice of counsel may attack the validity of the guilty plea by showing that he received ineffective assistance of counsel under the Sixth Amendment to the United States Constitution." "To establish prejudice in the context of a challenge to a guilty plea based upon an assertion of ineffective assistance of counsel, a defendant must `demonstrate a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.'" In the case at bar, the appellant asserts that trial counsel was ineffective not only in his representation at the plea stage as argued supra, but further trial counsel was ineffective in addressing the defendant's concerns prior to sentencing by failing to file a motion to withdraw plea. In lieu of this, defense counsel asserted at sentencing that, notwithstanding the appellant's desire to withdraw his plea, he saw no reason why he should file such motion. Appellant submits that based on Kirksey, appellant's trial counsel's failure to seek a motion to withdraw plea prior to sentence fell below an objectively reasonable standard. "But for" this failure, appellant would have had the opportunity to withdraw his plea and proceed to trial.
Nollette v. State, 118 Nev. 341, 348-49, 46 P.3d 87, 92 (2002).
Molina v. State, 120 Nev. Adv. Rep. 21, 87 P.3d 533, 537 (2004), citing, Kirksey v. State, 112 Nev. 980, 988, 923 P.2d 1102, 1107 (1996).
Conclusion
While appellant recognizes that claims of invalid plea and ineffective assistance of counsel are more commonly addressed in post-conviction, the opportunity to address the issue at the appeal stage is appropriate and compelling in this case. Notwithstanding the failure of defense counsel to file a formal motion withdrawing the no contest plea, defense counsel did inform the court of the defendant's desire to pursue the motion. The court acknowledged on the record that he had reviewed the transcript of the defendant's change of plea and stated on the record that he saw no reason why such relief should be granted. In essence, the court entertained the proposition of withdrawal of plea without a written motion. Further, without the support of counsel to assist the defendant in pursuing a withdrawal of plea, the defense attorney was ineffective in representing the interests of the appellant and "but for" his failure to research and submit authority for the withdrawal of plea (e.g. Tiger andLyon), the appellant would have had an opportunity to have his plea withdrawn.
RESPECTFULLY SUBMITTED this 10th day of November, 2004.
___________________________ Kenneth A. Stover, Esq. Bar No. 05792 P.O. Box 3072 Reno, Nevada 89505 (775) 329-4554VERIFICATION
I recongize that pursuant to NRAP 3C I am responsible for filing a timely supplemental fast track statemetn and that the Supreme Court of Nevada may sanction an attorney for failing to file a timely supplemental fast track statement, or failing to raise material issues or arguments in the supplemental fast track statement, or failing to cooperate fully with appellate counsel during the course of an appeal. I threfore certify that the information provided in this supplemental fast track statement is true and complete to the best of my knowledge, information and belief.Dated this 10th day of November, 2004
___________________________ Kenneth A. Stover, Esq. Bar No. 05792 P.O. Box 3072 Reno, Nevada 89505 (775) 329-4554 CODE: 2260 KEVIN VAN RY, ESQ. Nevada Bar No. 6856 VAN RY LAW OFFICES, LLP 201 West Liberty Street, Suite 100 Reno, Nevada 89501 (775) 333-9000 Phone (775) 333-9004 Fax IN THE SECOND JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA IN AND FOR THE COUNTY OF WASHOE THE STATE OF NEVADA Case No. CR03-0647 Plaintiff, Dept. No. 3 v. JULIO CESAR NAVAS, Defendant.MOTION TO WITHDRAW AS COUNSEL OF RECORD
COMES NOW, Kevin Van Ry of the Van Ry Law Offices, LLP and pursuant to SCR 46 and WDCR 23, moves to withdraw as counsel of record. This motion is made and based upon the points and authorities and the Affidavit of Kevin Van Ry attached hereto.SCR 46 provides in pertinent part: "The attorney in an action . . . may be changed at any time before judgment or final determination as follows: 2. Upon the order of the court or judge thereof on the application of the attorney. . . ."
WDCR 23(2)(b) provides that an attorney may withdraw, "By order of the court, upon motion and notice as provided in these rules,. . . ."
Here, counsel seeks to withdraw from this case because of a conflict of interest. Counsel, therefore, requests that he be allowed to withdraw as counsel of record for Defendant, JULIO CESAR NAVAS.
DATED this 4th day of May, 2006.
VAN RY LAW OFFICES, LLP _________________________ KEVIN VAN RYCERTIFICATE OF SERVICE
Pursuant to NRCP 5(b), I hereby certify that I am an employee of the Van Ry Law Offices, LLP, 201 West Liberty Street, Ste. 100, Reno, Nevada 89501, and that on the date below, a true and correct copy of the foregoing, MOTON TO WITHDRAW AS COUNSEL OF RECORD was deposited for mailing with the United States Post Office, Regular First Class Mail at Reno, Nevada, in a sealed envelope, addressed to the following:Washoe County District Attorney's Office
75 Court Street
P.O. Box 30083
Reno, NV 89520
Mr. Julio Cesar Navas
Inmate
P.O. Box 7000
Carson City, NV 89702
DATED this 4th day of May, 2006. IN THE SUPREME COURT OF THE STATE OF NEVADA
_____________________ Debra L. Goss JULIO CESAR NAVAS Case No. 46966 Appellant, Case No. 46967 v. THE STATE OF NEVADA, Respondent.MOTION FOR EXTENSION OF TIME TO FILE OPENING BREIF AND APPENDIX
COMES NOW JULIO CESAR NAVAS Appellant, by and through his undersigned counsel, KEVIN VAN RY, and hereby moves this Court for an extension of time to file OPENING BREIF AND APPENDIX. Said extension is requested as the Court has not ruled on Counsel's MOTION TO WITHDRAW AS COUNSEL.It is hereby respectfully requested that the filing deadline be continued forty-five (45) days from the date of this motion, to January 12, 2007, for the Court to make a ruling on the MOTION TO WITHDRAW AS COUNSEL.
DATED this 28th day of November, 2006.
VAN RY LAW OFFICES, LLP ____________________________ KEVIN VAN RY Nevada Bar No. 6856 201 West Liberty Street, Suite 100 Reno, NV 89501 (775) 333-9000 Attorney for AppellantCERTIFICATE OF SERVICE
Pursuant to NRCP 5(b), I hereby certify that I am an employee of the Van Ry Law Offices, LLP, 201 West Liberty Street, Ste. 100, Reno, Nevada 89501, and that on the date below, a true and correct copy of the foregoing, MOTION FOR EXTENSION OF TIME TO FILE OPENING BREIF AND APPENDIX, was deposited for mailing with the United States Post Office, Regular First Class Mail at Reno, Nevada, in a sealed envelope, addressed to the following:Gary Hatlestad, Esq.
Chief Appellate Deputy
Washoe County District Attorney's Office
75 Court Street
P.O. Box 30083
Reno, NV 89520-3083
Mr. Julio Cesar Navas
Inmate 78666
P.O. Box 7000
Carson City, NV 89702
DATED this 28th day of November, 2006.
__________________________ EmployeeExhibit "G"
Exhibit Julio César Navas 78666 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA Julio César Navas James BACA Warden not involved State of Nevada not involved/Nor The A-G This is a case under Conspiracy and fraud own Volition their ind. capacity , # Warm Springs Correctional Center P.O. Box 7007 Carson City, Nevada 89702 3:10-cv-00647 Petitioner, ____ _______ (To Court) Vs. , Warden et al., Respondent.EX-PARTE MOTION FOR APPOINTMENT OF COUNSEL
COMES NOW, Julio César Navas, Petitioner, by and through his proper person, and pursuant to 18 U.S.C. § 3006A(g), respectfully submits this "Motion for Appointment of Counsel." Petitioner respectfully requests this Honorable Court to appoint counsel to represent him in his Petition for Writ of Habeas Corpus on file herein.This Motion is made and based upon all papers and pleadings on file herein, the attached points and authorities in support thereof, and the attached Affidavit of Petitioner.
DATED this 12 day of October, 2010.
Respectfully Submitted, ________________________________ Petitioner, In Proper PersonPOINTS AND AUTHORITIES ARGUMENT
Petitioner, pursuant to 18 U.S.C. § 3006A(g), requests this Court to appoint counsel to represent him in his Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254 for the following reasons:
1. Petitioner is not able to afford counsel. See attached Financial Certificate and Motion to Proceed in Forma Pauperis.
2. Counsel is necessary to proceed with discovery and investigations, which the Petitioner cannot do while confined in prison.
3. Petitioner's sentence is very extreme,
4. The issues involved in this case are complex.
5. The prison limits the hours that the petitioner may have access to the law library and the law materials contained there are very limited.
6. Petitioner is untrained in the science of law.
7. Without the appointment of counsel, petitioner would be prejudiced herein.
8. The court must appoint counsel where the complexities of the case are such that denial of counsel would amount to a denial of due process. Brown v. United States, 623 F. 2d 54, 61 (9th Cir. 1980), and where the petitioner is a person of such limited education as to the incapable of presenting his claims in such a way that the court can afford him a fair hearing, see Hawkins v. Bennett, 42 F.2d 948 (8th Cir. 1970).
9. Failure to appoint counsel in this case would violate Petitioner's 14th Amendment right to due process and equal protection as guaranteed by the United States Constitution.
10. Petitioner is a "Lay Man," unskilled and untrained in the court procedures. This case is intertwind and too complex and Requieres the assistance of a counsel-involved whether conspiracy malicious prosecution, fraud marriage shams real propecy document fraud, bankruptcy, Fed-Expension fraud. (Bigamy) divorce Fraud-Embezz Lement and Laundering with drugs money drug trafficking and Illegal Aliens Abduction False Adoption, fraud of interstate trans portetion of money fund by the D.A. and deputies, crased and tampered evidence.
CONCLUSION
WHEREFORE, Petitioner prays that this Honorable Court appoint counsel to represent him in his Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254.Failure to do so would prejudice petitioner and violate his 14th Amendment rights as guaranteed by the United States Constitution.
DATED THIS 12 DAY OF October, 2010.
BY: _____________________________ Petitioner, In Proper Person Julio César Navas 78666 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA Julio Cesar Navas James Baca State of Nev not involved and A-G. , # Warm Springs Correctional Center P.O. Box 7007 Carson City, Nevada 89702 Petitioner, _______________________________ (To be supplied by Court) Vs. , Warden et al., Respondent. /AFFIDAVIT IN SUPPORT OF MOTION FOR APPOINTMENT OF COUNSEL
STATE OF NEVADA ) ) SS. COUNTY OF CARSON CITY ) I, Julio César Navas., upon being first duly sworn according to law, deposes and says:
1. That on the 12 day of October, 2010, under penalties of perjury, and in accordance with 28 U.S.C. § 1746 and 18 U.S.C. § 1621, execution of instrument by prisoner in the foregoing Motion for Appointment of Counsel in the above-entitled cause of action. That he knows the contents thereof and that he executed the same freely and voluntarily and for the use and purpose therein mentioned.
2. That it is the Petitioner's belief that his cause of action is meritorious.
3. That the Petitioner is financially unable to employ counsel while incarcerated.
4. That the Petitioner has no assets or funds which could be used to prepay the fees or costs of a privately hired attorney.
5. Petitioner hereby states that as of this date, he has cash in his prison account in the amount reflected in the financial Certificate attached to his Motion to proceed in Forma Pauperis, on file herein.
6. That Petitioner has relied on the assistance of other inmates in the majority of his post-conviction pleadings, including the instant pleadings.
7. The Petitioner is not lettered in the science of law.
I declare under penalty of perjury under the laws of the United State of America that the foregoing is true and correct. 28 U.S.C. § 1746 and 18 U.S.C. § 1621.
Dated this 12 day of October, 2010.
Respectfully Submitted, ____________________________ Petitioner/Affiant In Proper Person Exhibit