Clifton Perry v. Acting Warden Michael Martel

Filing 5

ORDER Granting Application for Appointment of Counsel 1 and Application to Proceed In Forma Pauperis 2 , 3 ; DENYING Without Prejudice Request for Stay of Execution 1 , signed by Chief Judge Anthony W. Ishii on 8/18/11. (Gonzalez, R)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CLIFTON PERRY
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Petitioner,
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v.
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MICHAEL MARTEL, as Acting Warden of )
California State Prison at San Quentin,
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Respondent.
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Case No. 1:11-cv-01367 AWI
DEATH PENALTY CASE
ORDER GRANTING APPLICATION FOR
APPOINTMENT OF COUNSEL AND
APPLICATION TO PROCEED IN FORMA
PAUPERIS; DENYING WITHOUT PREJUDICE
REQUEST FOR STAY OF EXECUTION

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On August 16, 2011, Petitioner Clifton Perry (“Perry”) a state prisoner facing capital punishment,

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commenced this action pursuant to 28 U.S.C. § 2254 by filing an application for appointment of counsel and

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request for a stay of execution. In Perry’s declaration, appended to this application, he includes a statement

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of his indigence, a Certificate of Funds over the signature of a prison official, and a certified Inmate Statement

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Report from the prison stating the amount on deposit in his prison account. A separate application for Perry

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to proceed in forma pauperis also was filed on August 16, 2011 and corrected on August 17, 2011, over the

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signature of Assistant Federal Defender Joseph Schlesinger. The forma pauperis application is supported by

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Perry’s declaration appended to the request for stay and appointment of counsel.

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I.

Request for Appointment of Counsel

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Section 3599(a)(2) of Title 18 of the United States Code provides for the appointment of one of more

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attorneys to represent an indigent person proceeding under 28 U.S.C. § 2254 to vacate a death sentence. Rule

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191(c) of the Local Rules of the United States District Court for the Eastern District of California also

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provides for the appointment of counsel for indigent capital habeas petitioners. Under this rule, selection of

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counsel is made from a panel of attorneys qualified for appointment in death penalty cases and certified by
11dp1367.1stOrd.Per.wpd

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a selection board appointed by the Chief Judge. Based on the Perry’s submissions, he is entitled to

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appointment of counsel under 18 U.S.C. § 3599(a)(2).

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II.

Application for Leave to Proceed in Forma Pauperis

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Rule 3(a) of the Rules Governing § 2254 Cases in the United States District Courts provides that a

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petitioner seeking in forma pauperis status shall file an affidavit of assets as required by 28 U.S.C. § 1915.

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Rule 3(a) also requires a certificate from the prison stating the amount on deposit in the petitioner’s accounts.

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Perry’s declaration, Certificate of Funds over the signature of a prison official, and certified Inmate Statement

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Report appended to his request for a stay of execution and appointment of counsel satisfy these requirements.

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III.

Request for Stay of Execution

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Local Rule 191(g)(1) provides that when an indigent, condemned habeas petitioner submits an

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application for appointment of counsel and a temporary stay of execution, the Court may issue a temporary

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stay of execution for a period of 90 days, while counsel is located. Perry has presented no facts or

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circumstances to warrant the exercise of discretion to issue a temporary stay of execution in this case.

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Good cause appearing therefor,

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1.

Perry’s application for appointment of counsel is granted. The matter is referred to the

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Selection Board for the Eastern District of California to certify an attorney or attorneys qualified and available

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to represent Danks before this Court.

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2.

Perry’s application to proceed in forma pauperis is granted.

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3..

Perry’s application for a temporary stay of execution is denied without prejudice.

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IT IS SO ORDERED

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Dated:

August 18, 2011
/s/ Anthony W. Ishii
Anthony W. Ishii
United States District Judge

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