Whalen v. Warden of San Quentin

Filing 5

ORDER Granting 1 Motion for Appointment of Counsel; ORDER Regarding Petitioner's 4 Application to Proceed without Prepayment of Fees signed by Magistrate Judge Stanley A. Boone on 12/03/2014. Motion for IFP due by 12/23/2014.(Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DANIEL LEE WHALEN,

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Case No. 1:14-cv-01865-LJO-SAB
DEATH PENALTY CASE

Petitioner,
ORDER GRANTING MOTION FOR
APPOINTMENT OF COUNSEL
(ECF NO. 1)

v.
WARDEN, California State Prison at San
Quentin,

ORDER REGARDING PETITIONER’S
APPLICATION TO PROCEED WITHOUT
PREPAYMENT OF FEES – DECEMBER 23,
2014 DEADLINE
(ECF NO. 4)

Respondent.

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On November 21, 2014, Daniel Lee Whalen (“Petitioner”), a state prisoner facing
capital punishment, commenced this action pursuant to 28 U.S.C. § 2254 by filing an
application for appointment of attorney A. Richard Ellis to represent him. In addition, attorney
Ellis filed on Petitioner’s behalf an application to proceed in forma pauperis. In Petitioner’s
declaration, appended to his in forma pauperis application, he includes a statement of his
indigence. The in forma pauperis application reports that arrangements to obtain a statement of
funds on deposit in Petitioner’s prison account have been made and that the statement will be
filed with the Court upon receipt.
I.
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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

3 of one of more attorneys to represent an indigent person proceeding under 28 U.S.C. § 2254 to
4 vacate a death sentence. Rule 191(c) of the Local Rules of the United States District Court for
5 the Eastern District of California also provides for the appointment of counsel for indigent
6 capital habeas petitioners. Under this rule, selection of counsel is made from a panel of
7 attorneys qualified for appointment in death penalty cases and certified by a selection board
8 appointed by the Chief Judge. As noted, Petitioner requests that A. Richard Ellis be appointed
9 to represent him in these federal proceedings. Based on the Petitioner’s submissions, he is
10 entitled to appointment of counsel under 18 U.S.C. § 3599(a)(2).
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II.

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APPLICATION TO PROCEED IN FORMA PAUPERIS

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

14 provides that a petitioner seeking in forma pauperis status shall file an affidavit of assets as
15 required by 28 U.S.C. § 1915. Rule 3(a) also requires a certificate from the prison stating the
16 amount on deposit in the petitioner’s accounts. The Court has Petitioner’s affidavit in
17 compliance with 28 U.S.C. § 1915. However, Petitioner asserts that the certificate from the
18 prison stating the amount on deposit in his prison accounts is not currently available. The
19 Court will hold its decision on the application to proceed in forma pauperis until the Petitioner
20 files with the Court the certificate from the prison stating the amount on deposit in his
21 accounts. The Petitioner shall file the certificate by December 23, 2014. If not provided by that
22 time, the application will be denied without prejudice.
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III.

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ORDER

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Good cause appearing, it is HEREBY ORDERED that:

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1.

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Petitioner’s motion for appointment of counsel is granted. The matter is referred
to the Selection Board for the Eastern District of California for consideration of

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Petitioner’s request that A. Richard Ellis be appointed to represent him and for

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the recommendation of either Mr. Ellis or another suitable counsel.
2.

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Petitioner’s application to proceed in forma pauperis is held under submission

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until Petitioner files with the Court the certificate from the prison stating the

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amount on deposit in his accounts. The Petitioner shall file the certificate by

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December 23, 2014. If not filed by that time, the application will be denied

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without prejudice.

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IT IS SO ORDERED.

10 Dated:

December 3, 2014
UNITED STATES MAGISTRATE JUDGE

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