Caetano v. Peery

Filing 41

ORDER ADOPTING 31 FINDINGS AND RECOMMENDATION; DENYING 20 MOTION TO DISMISS; GRANTING 40 MOTION REQUESTING RULING; DENYING, WITHOUT PREJUDICE, 35 MOTION TO APPOINT COUNSEL AND DENYING, WITHOUT PREJUDICE, 36 , 37 , 38 MOTIONS FOR DISCOVERY signed by Chief Judge Lawrence J. O'Neill on 2/7/2017. (Lundstrom, T)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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1:15-cv-00832 LJO MJS HC
NATHAN CAETANO,

ORDER
Petitioner,

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v.

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AND

DENYING MOTION TO DISMISS;

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ADOPTING
FINDINGS
RECOMMENDATION;

GRANTING MOTIONS TO RULE
FINDINGS AND RECOMMENDATION;

S. PEERY,
Respondent.

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ON

DENYING,
WITHOUT
PREJUDICE,
MOTION TO APPOINT COUNSEL;

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DENYING,
WITHOUT
PREJUDICE,
MOTION
FOR
PRODUCTION
OF
DISCOVERY

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[Docs. 20, 31, 35-38, 40]

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Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254.
On August 25, 2016, the Magistrate Judge issued an Amended Findings and
Recommendation to deny, without prejudice, Respondent's Motion to Dismiss because
of the potential Petitioner could be found entitled to equitable tolling based on his mental
condition. This Amended Findings and Recommendation was served on all parties. The

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parties were given thirty days thereafter to file objections to the Amended Findings and

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Recommendations. No objections were filed within the allotted time or otherwise.

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In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), this Court has

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conducted a de novo review of the case. Having carefully reviewed the entire file, the

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Court concludes that the Magistrate Judge's Amended Findings and Recommendation is

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supported by the record and proper analysis.

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Petitioner has however filed several motions since the Magistrate Judge issued
the Amended Findings and Recommendation. The Court will address each in turn.

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First, Petitioner requests that the Court rule upon the Amended Findings and

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Recommendation. (ECF No. 40.) The motion is GRANTED, and the Court, by way of this

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Order, is adopting the Amended Findings and Recommendation and denying the motion

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to dismiss.

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Petitioner requests additional discovery to support his claims. (See, e.g., ECF
Nos. 35-38.) These motions are DENIED without prejudice.

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First, several of the requests appear to be for production of evidence in support of

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Petitioner’s claim of equitable tolling. However, as Respondent has not objected to the

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Findings and Recommendation, there is no pending challenge to the timeliness of

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Plaintiff’s Petition and so no current need for evidence in support of Petitioner’s claim of

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equitable tolling.

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To the extent Petitioner requests additional discovery regarding the merits of his

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claim, the motions are still DENIED without prejudice. This Court, in reviewing

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Petitioner's claims and determining if the state court decision was reasonable, may only

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rely upon the record before the state court. See Cullen v. Pinholster, 131 S. Ct. 1388,

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1398 (2011) ("We now hold that review under § 2254(d)(1) is limited to the record that

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was before the state court that adjudicated the claim on the merits."). As such, further

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discovery is not warranted at this time. If, upon substantive review of the petition, the

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Court determines that discovery is necessary, it will provide Petitioner the opportunity to

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conduct same.
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Finally, Petitioner requests the appointment of counsel. There currently exists no

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absolute right to appointment of counsel in habeas proceedings. See, e.g., Anderson v.

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Heinze, 258 F.2d 479, 481 (9th Cir. 1958); Mitchell v. Wyrick, 727 F.2d 773, 774 (8th Cir.

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1984). However, Title 18 U.S.C. ' 3006A(a)(2)(B) authorizes the appointment of counsel

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at any stage of the case if "the interests of justice so require." See Rule 8(c), Rules

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Governing Section 2254 Cases. In the present case, the Court does not find that the

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interests of justice require the appointment of counsel at the present time. Petitioner's

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request for appointment of counsel is DENIED without prejudice.

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Accordingly, IT IS HEREBY ORDERED that:
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The Amended Findings and Recommendation issued August 25, 2016, is
ADOPTED IN FULL;

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2.

Respondent’s Motion to Dismiss is DENIED;

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3.

Petitioner’s motion requesting ruling (ECF No. 40) is GRANTED;

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4.

Petitioner’s motions for discovery and appointment of counsel are DENIED

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without prejudice (ECF No. 35-38); and
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The Court hereby orders the Magistrate Judge to schedule further briefing

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as appropriate in light the Court’s ruling on Respondent’s motion to

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dismiss.

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IT IS SO ORDERED.
Dated:

/s/ Lawrence J. O’Neill _____

February 7, 2017

UNITED STATES CHIEF DISTRICT JUDGE
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