Free Order on Motion to Appoint Expert - District Court of Colorado - Colorado

Case 1:04-cv-01072-ZLW-BNB

Document 70

Filed 11/17/2005

Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Magistrate Judge Boyd N. Boland Civil Action No. 04-cv-01072-ZLW-BNB JOHN E. LOPEZ, Applicant, v. CARL ZENON, and KEN SALAZAR, The Attorney General of the State of Colorado, Respondents. ______________________________________________________________________________ ORDER ______________________________________________________________________________ This matter is before me on the petitioner' Motion to Permit Appointment of an s Investigator and Request to Continue Briefing Schedule (the " Motion" filed October 14, ), 2005. The petitioner requests that the court appoint an investigator to assist him with this case. Title 18 of the United States Code provides: Counsel for a person who is financially unable to obtain investigative, expert, or other services necessary for adequate representation may request them in an ex parte application. Upon finding, after appropriate inquiry in an ex parte proceeding, that the services are necessary and that the person is financially unable to obtain them, the court ... shall authorize counsel to obtain the services. 18 U.S.C. § 3006A(e)(1) (1995). Pursuant to section 3006A(e)(1), I held an ex parte hearing on the Motion on November 16, 2005.

Case 1:04-cv-01072-ZLW-BNB

Document 70

Filed 11/17/2005

Page 2 of 2

First, I find that the petitioner is financially unable to obtain investigative services. In addition, I am satisfied that an investigator is necessary to allow the petitioner an opportunity to attempt to develop facts that were not previously developed in the state court proceedings; could not previously have been developed through the exercise of due diligence; and may establish that but for constitutional error no reasonable fact finder would have found the petitioner guilty of the underlying offense. Accordingly, IT IS ORDERED that the Motion is GRANTED, subject to the limitations set forth in 18 U.S.C. § 3006A(e). IT IS FURTHER ORDERED that counsel for the petitioner shall complete CJA Form 21, (found at www.cod.uscourts.gov under the CJA information section). The completed form shall be returned to Nancy Rutledge in the office of the Clerk of the Court. IT IS FURTHER ORDERED that the petitioner shall file his amended petition on or before February 1, 2006. Dated November 16, 2005. BY THE COURT: /s/ Boyd N. Boland United States Magistrate Judge

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