Madrigal v. Macomber

Filing 56

ORDER DENYING AS MOOT 53 Motion to Proceed IFP on Appeal and ORDER DENYING Without Prejudice 54 Motion to Appoint Counsel on Appeal signed by Magistrate Judge Stanley A. Boone on 4/19/2017. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ISCANDER FRANCISCO MADRIGAL,
Petitioner,

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Case No. 1:14-cv-01436-LJO-SAB-HC
ORDER DENYING AS MOOT MOTION TO
PROCEED IN FORMA PAUPERIS ON
APPEAL

v.
JEFF MACOMBER,

ORDER DENYING WITHOUT PREJUDICE
REQUEST FOR APPOINTMENT OF
COUNSEL ON APPEAL

Respondent.

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(ECF Nos. 53, 54)
Petitioner is a state prisoner who proceeded pro se with a petition for writ of habeas

18 corpus pursuant to 28 U.S.C. § 2254. On February 24, 2017, the Court adopted the Magistrate
19 Judge’s findings and recommendation and denied the petition. (ECF No. 46).
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On April 17, 2017, Petitioner filed a motion to proceed in forma pauperis on appeal.

21 (ECF No. 53). The Court previously permitted Petitioner to proceed in forma pauperis in this
22 action. (ECF No. 4). Therefore, Petitioner does not require further authorization to appeal in
23 forma pauperis. Fed. R. App. P. 24(a)(3).
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On April 17, 2017, Petitioner also filed a request for appointment of counsel on appeal.

25 (ECF No. 54). There currently exists no absolute right to appointment of counsel in habeas
26 proceedings. See, e.g., Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986); Anderson v.
27 Heinze, 258 F.2d 479, 481 (9th Cir. 1958). However, the Criminal Justice Act authorizes the
28 appointment of counsel at any stage of the proceeding for financially eligible persons if “the

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1 interests of justice so require.” 18 U.S.C. § 3006A(a)(2)(B). See also Rule 8(c), Rules Governing
2 Section 2254 Cases. In the present case, the Court does not find that the interests of justice
3 require the appointment of counsel at this time. However, Petitioner is not precluded from
4 renewing his request for appointment of counsel in the Ninth Circuit.
Accordingly, the Court HEREBY ORDERS that:

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1. Petitioner’s motion to proceed in forma pauperis on appeal (ECF No. 53) is DENIED as
MOOT; and

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2. Petitioner’s request for appointment of counsel on appeal (ECF No. 54) is DENIED
WITHOUT PREJUDICE to its renewal in the Ninth Circuit Court of Appeals.

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IT IS SO ORDERED.

12 Dated:

April 19, 2017
UNITED STATES MAGISTRATE JUDGE

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