KEITH BARLOW v. WARDEN HENLEY NNCC (2025)

ORDER OF REVERSAL AND REMAND

This is a pro se appeal from a district court order denying a postconviction petition for a writ of habeas corpus. Eighth Judicial District Court, Clark County; Tierra Danielle Jones, Judge.

On June 6, 2024, appellant Keith Barlow filed a timely postconviction petition and alleged numerous instances of ineffective assistance of counsel. Barlow also requested the appointment of postconviction counsel. The district court denied the petition without appointing counsel. We conclude that the district court abused its discretion in denying Barlow's request for the appointment of postconviction counsel.

The decision to appoint counsel is not necessarily dependent upon whether a petitioner raises issues that, if true, would entitle the petitioner to relief. See Renteria-Novoa v. State, 133 Nev. 75, 77, 391 P.3d 760, 762 (2017). Rather, NRS 34.750 provides for the discretionary appointment of postconviction counsel and sets forth a nonexhaustive list of factors which the court may consider in deciding whether to appoint counsel: the petitioner's indigency, the severity of the consequences to the petitioner, the difficulty of those issues presented, whether the petitioner is unable to comprehend the proceedings, and whether counsel is necessary to proceed with discovery.

The factors in NRS 34.750 favored granting the motion to appoint counsel in this case. Barlow filed a motion to proceed in forma pauperis and supporting documents alleging he was indigent and requested assistance of postconviction counsel. Barlow is serving a significant sentence of life without the possibility of parole. And some of Barlow's claims require development of facts outside the record, including whether trial counsel was ineffective for not retaining a ballistics expert and for not investigating an alleged alibi witness. The failure to appoint postconviction counsel prevented meaningful litigation of the petition under these facts. For the reasons set forth above, we

ORDER the judgment of the district court REVERSED AND REMAND this matter to the district court for proceedings consistent with this order.

Parraguirre, J.

Bell, J.

Stiglich, J.