Nailor v. California Department of Corrections and Rehabilitation

Background

Duane A. Nailor, a state prisoner proceeding without a lawyer, filed a petition under 28 U.S.C. § 2254 challenging his state conviction in Alameda County Superior Court. The respondent filed an answer, and the court previously extended Nailor's deadline to file a written response after he reported that he had not received the answer.

Nailor then requested another extension of time. He stated that, because of mental illness, he was relying on another inmate to prepare his response. Nailor also requested appointment of counsel, citing schizophrenia and manic depression, psychotropic medication, and treatment through the prison mental-health clinic. Declarations from Nailor and the assisting inmate described his illness, drowsiness, and difficulty understanding how to prepare his response and protect his constitutional rights.

Competency inquiry and appointment of counsel

The court explained that the constitutional right to counsel does not apply automatically in federal habeas proceedings. Ordinarily, appointment of counsel is within the district court's discretion unless an evidentiary hearing is required. But Federal Rule of Civil Procedure 17(c) applies to habeas cases and requires the court to protect the interests of an incompetent litigant, including by appointing a guardian ad litem or otherwise protecting that person's interests.

The court found a substantial question about Nailor's competence based on the declarations and facts concerning his underlying conviction. The state's answer described a defense involving Nailor's long history of mental illness and expert testimony from a clinical psychologist supporting his assertion of ongoing mental illness. The court therefore concluded that it had a duty to investigate Nailor's competence before entering judgment.

Ruling

The court referred the matter to Kevin Knestrick of the Federal Pro Se Program to find a lawyer for the limited purpose of representing Nailor in proceedings about whether to appoint a conservator or guardian ad litem under Rule 17. The lawyer will be appointed for that limited purpose unless the lawyer volunteers to represent Nailor more broadly. After deciding whether a conservator or guardian ad litem should be appointed, the court said it would decide whether to refer the case again to find counsel for the remainder of the action.

The court stayed all proceedings until further notice. It denied Nailor's motion for an extension of time to file his written response as moot and stated that it would establish a new schedule after Nailor's competence was determined. The order terminated Docket No. 18.