Order Resolving Pro Se Motions and Directing Notice of Appearance

[ECF Nos. 38-41, 44 & 48]

JENNIFER A. DORSEY, District Judge.

Pro se petitioner Frank Peck brings this habeas corpus petition under 28 U.S.C. § 2254 challenging his 2009 Nevada judgment of conviction for sexual assault.1 A prolific motion filer, Peck has personally filed five motions in just the last two months. By this order, I resolve all of the motions filed by Peck in proper person after I ordered the appointment of counsel, direct counsel to file a notice of appearance, and direct the Clerk of Court to designate Peck as a restricted filer for further papers submitted in proper person.

Discussion

By an order entered on March 21, 2019, I found that the interests of justice are served by appointing counsel for Peck in light of (1) Peck's allegations that a condition in his hand caused pain when writing and requires accommodations under the Americans with Disabilities Act (ADA) such as allowance of a typewriter or word processor; and (2) the possibility that Peck might need to conduct discovery.2 In multiple filings since then—starting only days later—Peck has made it clear that he does not want counsel, any counsel, to represent him. He maintains that his experiences with attorneys in state-court proceedings prior to this action "have caused `emense [sic] distrust of Attys [sic]" in Mr. Peck."3 He urges that the appointment of counsel in this federal habeas matter violates his alleged Sixth Amendment right to proceed pro se.

Peck further maintains, in opposing the appointment of counsel, that:

Peck has also alleged that he was having difficulty obtaining specialized scientific reports because of prison mailroom policies.5

Peck is in prison. And he is a party, not an expert witness. I do not have the authority in this action to compel the prison to make substantial changes in the conditions of his confinement to allow him to utilize "highly technical" technology to attempt to act essentially as an expert witness in his own case. Nor would I do so in the exercise of discretion. To the extent, if any, that expert analysis of evidence is required in this matter, Peck lacks the qualifications, the experience, and the capability to conduct such analysis as an expert. Nor does he have, nor will he have, ready access to resources to conduct such an expert analysis from inside prison. So, I continue to conclude that the decision to appoint counsel for Peck was the right one.6

What Peck misunderstands is that he has no Sixth Amendment right to represent himself in this case because the right to self representation does not carry over to habeas proceedings.7 Instead, Rule 6(a) of the Rules Governing Section 2254 Cases (the "Habeas Rules"), instructs that the district court must appoint counsel "[i]f necessary for effective discovery." And under Habeas Rule 8, a district court further must appoint counsel if an evidentiary hearing is warranted. While I make no ruling at this time about whether discovery or an evidentiary hearing ultimately will be warranted, sound case management and the efficient administration of justice militate in favor of appointing counsel earlier rather than later in a case where either is possible.8

Plus, Peck's recent flurry of filings in this case—including his notice that he "will file suit against anyone who appears in this case"9—on the heels of my order appointing counsel reflects only peckish opposition to any appointment whatsoever, not a deficiency or other legitimate issue with the specific counsel appointed. I thus continue to exercise my discretion to appoint counsel notwithstanding Peck's opposition to the appointment.

Finally, as I told Peck previously, he may no longer file documents on his own in a pro se capacity.10 He has made it very clear that he will continue to try to do so. I therefore will direct the Clerk of Court to designate Peck as a restricted filer in this action in proper person and to not accept any further papers submitted in proper person by Peck, other than papers seeking to appeal this order.11

IT IS THEREFORE ORDERED that:

IT IS FURTHER ORDERED that the Clerk of Court is directed to designate Peck—in proper person only—as a RESTRICTED FILER in this action only and RETURN AS UNFILED all future papers that Peck in proper person presents for filing in this case, except for a notice of appeal from this order and/or a copy of a petition for a writ of mandamus filed in the Ninth Circuit seeking review of this order. Nothing in this order is intended to restrict the filing of papers by Peck's appointed or provisionally appointed counsel.

IT IS FURTHER ORDERED that provisionally-appointed counsel's motion for an extension of time [ECF No. 44] is GRANTED nunc pro tunc; counsel has until June 5, 2019, to file a notice of appearance.12 Counsel should proceed forward without regard to any further filings or attempted filings by Peck in proper person, including an appeal or mandamus petition with respect to this order, unless a stay is entered by the Court of Appeals. I otherwise am not inclined to stay either the appointment or these proceedings pending any such appeal or petition. Absent a contrary order by the Court of Appeals, counsel should proceed forward as directed by my extant orders, subject to a counseled request for extension, without regard to Peck's actions or attempted actions in proper person notwithstanding those orders.

The Clerk of Court is directed to SEND Peck in proper person a copy of this order and a copy of the docket sheet and of all now-current filings from ECF No. 36 on.