STIPULATION AND ORDER TO EXTEND DISCOVERY DEADLINES

[THIRD REQUEST]

WILLIAM G. COBB, Magistrate Judge.

Plaintiff, The Bank of New York Mellon Trust Company, National Association fka The Bank of New York Trust Company, N.A. as successor to JPMorgan Chase Bank, as Trustee for Residential Asset Securities Corporation, Home Equity Mortgage Asset-Backed Pass Through Certificates Series 2004-KS5 ("Plaintiff"), Defendant, Airmotive Investments, LLC ("Airmotive"), and Defendant, Peckham Lane Townhouse Association Inc. ("HOA") (collectively, the "Parties"), by and through their respective counsels of record, hereby submit the following Stipulation and Order to extend the discovery deadlines for thirty (30) days.

A. DISCOVERY COMPLETED TO DATE:

Plaintiff has served its Initial Disclosure of Witnesses and Documents, disclosed its expert witness, propounded written discovery upon Airmotive and HOA, subpoenaed the records of HOA and E. Alan Tiras, Esq. ("HOA Trustee"), and deposed Airmotive. In addition, Plaintiff has noticed the depositions of HOA and HOA Trustee. Airmotive and HOA have both served their Initial Disclosure of Witnesses and Documents and responded to Plaintiff's written discovery.

B. DISCOVERY ANTICIPATED TO BE COMPLETED IN THE FUTURE:

Plaintiff has scheduled the depositions of HOA and HOA Trustee for September 6, 2018, and September 13, 2018, respectively. Plaintiff also expects to disclose additional documents.

C. REASONS WHY DISCOVERY SHOULD BE EXTENDED:

Regarding the requested extension of discovery, good cause exists to extend the discovery deadline 30 days. Good cause to extend the discovery cutoff exists "if it cannot reasonably be met despite the diligence of the party seeking the extension." See Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 608-09 (9th Cir. 1992). Here, Plaintiff noticed the depositions of HOA and HOA Trustee within the discovery period, however, the Parties are currently exploring settlement and may resolve the matter shortly, and Plaintiff seeks additional time to conduct the depositions to avoid expenses for all sides if the Parties can settle. This is the Parties' third request for an extension of discovery, and it is not intended to cause any delay or prejudice to any party.

D. PROPOSED DISCOVERY EXTENSION:

1. The current discovery deadlines

2. Proposed extended discovery deadlines:

IT IS SO STIPULATED.

IT IS SO ORDERED.

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

Before the Court is the Defendant's Motion to Dismiss the Indictment entered against him (ECF No. 18). The Indictment (ECF No. 1) charges that the Defendant illegally reentered the United States in violation of 8 U.S.C. § 1326(a) predicated on a prior conviction by Nevada for possession with the intent to distribute "cocaine and/or heroine" under Nevada Revised Statutes (NRS) § 453.337. The Defendant contends that the underlying conviction does not qualify for illegal reentry arguing that the Nevada statute is overbroad and indivisible. This Court finds that the statute is divisible, thus, the Court denies the Defendant's motion.

I. FACTS AND PROCEDURAL HISTORY

In 2003, Nevada convicted the Defendant of possession of cocaine and/or heroin with the intent to distribute in violation of NRS § 453.337. Due to this conviction, the Immigration and Naturalization Services deported the Defendant in February 2004. The Defendant allegedly reentered the United States sometime before September 14, 2018, and Nevada authorities arrested the Defendant for new charges of controlled substance possession. On October 11, 2018, a grand jury returned the Indictment on the charge of illegal reentry. Now, the Defendant moves to have the Indictment dismissed arguing that NRS § 453.337 fails to qualify as a predicate offense for illegal reentry.

II. LEGAL STANDARDS

A. Challenge of an Underlying Offense under 8 U.S.C. § 1326

In order to obtain a conviction for illegal reentry under 8 U.S.C. § 1326(a), the Government must prove that the Defendant was validly deported and subsequently entered the United States. Subsection (d) of the statute allows a defendant to collaterally attack the underlying offense that led to the deportation by establishing:

However, the Ninth Circuit has held "if [a d]efendant was not convicted of an offense that made him removable under the [Immigration and Naturalization Act] to begin with, he is excused from proving the first two requirements." United States v. Ochoa, 861 F.3d 1010, 1015 (9th Cir. 2017).

"An underlying removal order is fundamentally unfair if: (1) [an alien's] due process rights were violated by defects in the underlying deportation proceeding, and (2) he suffered prejudice as a result of the defects." United States v. Ortiz-Lopez, 385 F.3d 1202, 1204 (9th Cir. 2004). "Where a prior removal order is premised on the commission of an aggravated felony, a defendant who shows that the crime of which he was previously convicted was not, in fact, an aggravated felony, has established both that his due process rights were violated and that he suffered prejudice as a result." United States v. Martinez, 786 F.3d 1227, 1230 (9th Cir. 2015). A defendant satisfies the third prong if he shows the predicate offense fails to qualify for deportation.

B. Whether an Underlying Offense Qualifies for a Generic Offense

The Supreme Court has provided the lower courts with the test for determining whether an underlying offense (here, the conviction under NRS § 453.337) qualifies as a generic offense (here, an aggravated felony under 8 U.S.C. § 1101) in the federal system. In Taylor v. U.S., the Court has made clear that the underlying offense must have been proven certain, meaning, "the conviction necessarily implies that the defendant has been found guilty of all the elements of [the] generic [offense]." 495 U.S. 575, 599 (1990). The test is straightforward when the underlying offense is "indivisible"—i.e., the statute lists a single set of elements. Descamps v. United States, 570 U.S. 254, 261-262 (2013). The court should apply the so-called "categorical approach" by lining up the elements of the underlying offense and the generic offense to see if the elements of the underlying conviction are the same or narrower than the generic offense. Id.

The test becomes more difficult when the statute is "divisible"—i.e., the statute lists elements in the alternative to create multiple offenses in the same statute. Id. at 2283. The Supreme Court has instructed the lower courts to apply the "modified categorical approach" for divisible statutes. Id. In this approach, a court can look to see which of the alternative elements served as the basis to the underlying offense and compare the elements of the underlying offense to the generic offense. Mathis v. United States, 136 S.Ct. 2243, 2249 (2016).

Combining these two approaches, the Court has laid out a two-step approach to determine whether an underlying offense qualifies as the generic offense. First, the court will see if the underlying offense is a categorical match to the generic offense. United States v. Figueroa-Beltran, 892 F.3d 997, 1001-02 (9th Cir. 2018). If the statute matches, then the inquiry ends—the underlying offense qualifies. If the statute is overbroad without a list of alternatives, then again, the inquiry ends, and the statute does not qualify. Only if the statute does not match but lists alternatives, then a court should move onto the next step.

Second, the court should decide whether an overbroad statute with a list of alternatives, lists alternative means or divisible elements. Id. at 2257. The courts should first look to a state court decision to determine whether the alternatives are means or elements. Figueroa-Beltran, 892 F.3d at 1002. If that does not provide a definitive answer, then the court should look to the face of the statute for an answer. Id. If both of those avenues fail, then the court can peek at the record to determine whether an indictment or jury instruction references one alternative term to the exclusion of all others—indicating elements. Mathis, 136 S. Ct. at 2257. If there is not a clear answer from these sources, the court should find that the statute does not qualify. Shepard v. United States, 544 U.S. 13, 21 (2005). When an overbroad statute lists alternative means, the inquiry ends, since the underlying offense fails to show that the generic offense has been committed with certainty. Mathis, 136 S. Ct. at 2249. On the other hand, when the statute lists alternative elements, the court should further investigate whether the underlying offense as convicted satisfies the generic offense. Id.

III. ANALYSIS

As a preliminary matter, the Court notes the Government's arguments that the Defendant does not satisfy the first two prongs of 8 U.S.C. § 1326(d) in contravention of Ninth Circuit precedent. The Court is bound by the circuit's precedent, and thereby, rejects the Government's arguments.

The parties agree that NRS § 453.337 is an overbroad statute with a list of controlled substances that are outside the scope of the federal statute, so the sole issue remaining before this Court is whether NRS § 453.337 contains a divisible list of alternative elements or an indivisible list of alternative means of satisfying one element. The Defendant argues that the statute is indivisible, so the Court should dismiss the Indictment against him. The Government argues that the statute is divisible, so the Court should deny the Defendant's motion.

In his argument the Defendant relies on a Nevada Supreme Court case to say that the list of controlled substances are alternative means. In Sheriff, Clark County v. Luqman, the Nevada Supreme Court held that it was constitutional for the state legislature to delegate to a state agency the list of controlled substances on the controlled substance schedule. 697 P.2d 107 (1985). In so finding, the Nevada Supreme Court characterized the controlled substance scheduling as a proper delegation of fact to an agency body. See, e.g., id. at 109-10 ("Although the legislature may not delegate its power to legislate [the elements of a crime], it may delegate the power to determine the facts or state of things upon which the law makes its own operations depend."). The Defendant argues that the Nevada Supreme Court's reference to the Nevada's list of controlled substances as facts as opposed to elements supports his position.

However, the Court is persuaded by the Government's rebuttal that Luqman does not address the issue of divisibility. The issue in Luqman was the constitutionality of the delegation. The characterization of the controlled substance table as "fact" in that context is inapposite to the characterization of means versus elements for purposes of divisibility. Accordingly, the Court does not find that Luqman controls the case.

The Government points to a case that suggests that the statute is divisible. In 1977, the Nevada Supreme Court held that the controlled substance schedule was severable, and thereby, allowed for a defendant to be convicted of multiple crimes for different controlled substances when the defendant was found to have sold multiple controlled substances at the same time. Muller v. Sheriff, Clark Cty., 93 Nev. 686 (1977). The Government reasons that if one event can lead to multiple convictions under the statute, then the statute must be divisible.

The Ninth Circuit heard these two arguments from the Government and a similarly situated defendant in Figueroa-Beltran. The Ninth Circuit saw a conflict between these two cases and punted the issue of divisibility by certifying questions to the Nevada Supreme Court. 892 F.3d at 1004. Presently, the Nevada Supreme Court has accepted the questions but has stayed the proceeding pending a petition for certiorari by the defendant to the United States Supreme Court.

Just three months prior to the issuance of the order submitting the questions to the Nevada Supreme Court, Nevada issued the Andrews v. State opinion. 412 P.3d 37. Prior to the stay, the Nevada Supreme Court, on its own accord, indicated that the parties should brief Andrews on July 18, 2019. Order Accepting Certified Questions and Directing Briefing at 2, Figueroa-Beltran v. USA, (No. 05-1631) ("In addressing the certified questions, the parties' briefs should address Andrews v. State . . . which was decided after the parties briefed this matter in federal court.").

Andrews strongly favors the Government's position. In Andrews, the Nevada Supreme Court held that NRS § 453.3385, with substantially similar language, "creates a separate offense for each . . . controlled substance simultaneously possessed by a person." Andrews, 412 P.3d at 38. The Nevada Supreme Court considered the statutory construction. Id. at 38. Further, the court considered how other courts interpreted similarly worded statutes. Id. at 41. By necessity, if a defendant can be convicted twice by an alternative list, the statute is divisible, and the list is not merely alternative means. The court's reasoning should likewise apply to NRS § 453.337.

The Defendant argues that the Ninth Circuit implicitly denied that Andrews favored the government by issuing Figueroa-Beltran three months after Andrews. However, as both the Government and, more importantly, the Nevada Supreme Court note, the case was issued after all briefing and argumentation in Figueroa-Beltran, thus, the case was not before the Ninth Circuit. It is also telling that the Ninth Circuit does not mention the case.

Accordingly, this Court finds that the conflict of divisibility has been resolved by the Nevada Supreme Court's reasoning in Andrews. The Court finds that the statute is divisible, and that the Defendant's conviction for possession of cocaine and/or heroin with the intent to distribute under NRS § 453.337 qualifies as an aggravated felony as defined by 8 U.S.C. § 1101, since both cocaine and heroin were also on the federal controlled substance schedule. The Defendant's argument fails.

CONCLUSION

IT IS HEREBY ORDERED that the Defendant's Motion to Dismiss (ECF No. 18) is DENIED.

IT IS SO ORDERED.

Before the court is Plaintiff's Motion for Appointment of Counsel (ECF No. 29).1 Plaintiff bases his motion on (1) the fact that he is unable to afford counsel, (2) that the substantive issues and procedural matters in this case are too complex for Plaintiff's comprehension and abilities, and (3) that Plaintiff's incarceration will greatly limit his ability to effectively litigate his case. (Id.) Plaintiff further states he is "almost bliend (sic) and my education is low. I do not have a fer (sic) chanse (sic) against all there (sic) expencil (sic) lawyers of the state." (Id. at 3.)

A litigant in a civil rights action does not have a Sixth Amendment right to appointed counsel. Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981). In very limited circumstances, federal courts are empowered to request an attorney to represent an indigent civil litigant. The circumstances in which a court will grant such a request, however, are exceedingly rare, and the court will grant the request under only extraordinary circumstances. United States v. 30.64 Acres of Land, 795 F.2d 796, 799-800 (9th Cir. 1986); Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986).

A finding of such exceptional or extraordinary circumstances requires that the court evaluate both the likelihood of Plaintiff's success on the merits and the pro se litigant's ability to articulate his claims in light of the complexity of the legal issues involved. Neither factor is controlling; both must be viewed together in making the finding. Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991), citing Wilborn, supra, 789 F.2d at 1331. Plaintiff has shown an ability to articulate his claims. (ECF Nos. 1, 3, 6, 8, 9, 29, 30.)

In the matter of a case's complexity, the Ninth Circuit in Wilborn noted that:

The Ninth Circuit therefore affirmed the District Court's exercise of discretion in denying the request for appointment of counsel because the Plaintiff failed to establish the case was complex as to facts or law. 789 F.2d at 1331.

The substantive claims involved in this action are not unduly complex. Plaintiff's Second Amended Complaint was allowed to proceed on the portion of count 1 alleging unsafe prison conditions against Defendants Preston, Poag, Carpenter, and Baze, and the portion of count 1 alleging deliberate indifference to serious medical needs against Defendants Dr. Aranas and Hegge. (ECF No. 10 at 12.) These claims are not so complex that counsel needs to be appointed to prosecute them. The court notes that several counts in the multi-count Second Amended Complaint Plaintiff filed successfully survived the court's screening of Plaintiff's pleading, despite Plaintiff's claim of a "low" level of education. (ECF No. 10.)

Similarly, with respect to the Terrell factors, Plaintiff has again failed to convince the court of the likelihood of success on the merits of his claims.

While any pro se inmate such as Mr. Villatoro would likely benefit from services of counsel, that is not the standard this court must employ in determining whether counsel should be appointed. Wood v. Housewright, 900 F.2d 1332, 1335-1336 (9th Cir. 1990).

The United States Supreme Court has generally stated that although Congress provided relief for violation of one's civil rights under 42 U.S.C. § 1983, the right to access to the courts is only a right to bring complaints to federal court and not a right to discover such claims or even to litigate them effectively once filed with a court. Lewis v. Casey, 518 U.S. 343, 354-355 (1996).

The court does not have the power "to make coercive appointments of counsel." Mallard v. U. S. Dist. Ct., 490 U.S. 296, 310 (1989). Thus, the court can appoint counsel only under exceptional circumstances. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) [cert den 130 S.Ct. 1282 (2010)]. Plaintiff has not shown that the exceptional circumstances necessary for appointment of counsel are present in this case.

Finally, Plaintiff claims he is "almost bliend." The Screening Order makes mention of Plaintiff's claim he was born "legally blind" but that Plaintiff was able to gain "partial sight in his right eye." (ECF No. 10 at 4.) Plaintiff's vision apparently benefitted from "transitional prescription eyeglasses." (Id.) If Plaintiff submits medical records documenting his vision deficit, the court would be amenable to reconsidering Plaintiff's request for appointment of counsel.

In the exercise of the court's discretion, it DENIES Plaintiff's Motion for Appointment of Counsel (ECF No. 29) without prejudice.

IT IS SO ORDERED.