Zapata v. Frauenheim

Filing 14

ORDER Staying Proceedings; ORDER Denying 12 Motion to Appoint Counsel signed by Magistrate Judge Stanley A. Boone on 10/24/2016. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RAMON PEREZ ZAPATA,
Petitioner,

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Case No. 1:16-cv-01260-SAB-HC
ORDER STAYING PROCEEDINGS

v.

ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL

S. FRAUENHEIM,
(ECF No. 12)

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Respondent.

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Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus

18 pursuant to 28 U.S.C. § 2254. Petitioner has consented to the jurisdiction of the United States
19 Magistrate Judge. (ECF No. 7).
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On September 30, 2016, the Court granted Petitioner’s motion to proceed with the stay

21 procedure set forth in Kelly v. Small, 315 F.3d 1063 (9th Cir. 2002). (ECF No. 9). On October
22 21, 2016, Petitioner filed an amended petition containing only exhausted claims, which satisfies
23 the first requirement for a Kelly stay. (ECF No. 11).
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Petitioner also has filed a second motion for appointment of counsel. (ECF No. 12). The

25 Court previously denied appointment of counsel on September 7, 2016. (ECF No. 6). In the
26 instant motion, Petitioner fails to raise any additional facts or arguments that were not already
27 considered by this Court in denying Petitioner’s first motion for appointment of counsel. The
28 Court finds that with the assistance of another inmate, Petitioner appears to have a sufficient
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1 grasp of his claims and the legal issues involved and that he is able to articulate those claims
2 adequately. The legal issues involved are not extremely complex, and Petitioner does not
3 demonstrate a likelihood of success on the merits such that the interests of justice require the
4 appointment of counsel at the present time.
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Accordingly, IT IS HEREBY ORDERED that:

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1. Petitioner’s motion for appointment of counsel (ECF No. 12) is DENIED;

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2. The proceedings are STAYED pending exhaustion of state remedies; and

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3. Petitioner is DIRECTED to file a status report within ninety (90) days of the date of

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service of this order, and then every ninety (90) days thereafter. Within thirty (30)

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days following the final order of the state courts, Petitioner MUST FILE an amended

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petition in this Court including all exhausted claims.
Petitioner is forewarned that failure to comply with this order will result in the Court

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13 vacating the stay.
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IT IS SO ORDERED.

16 Dated:

October 24, 2016
UNITED STATES MAGISTRATE JUDGE

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