(HC)Stephen v. Matterson

Filing 14

ORDER DENYING Motions for Appointment of Counsel 12 and Extension of Time 13 signed by Magistrate Judge Sheila K. Oberto on 11/13/2023.(Xiong, J.)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 STEPHEN RUSSELL FEGAN, 12 13 Case No. 1:23-cv-01520-SKO (HC) Petitioner, ORDER DENYING MOTIONS FOR APPOINTMENT OF COUNSEL AND EXTENSION OF TIME v. 14 GISELLE MATTERSON, 15 Respondent. [Docs. 12, 13] 16 17 Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for 18 writ of habeas corpus pursuant to 28 U.S.C. § 2254. 19 On October 27, 2023, the Court dismissed the petition with leave to file an amended 20 petition. (Doc. 7.) On October 30, 2023, Petitioner filed a notice of interlocutory appeal. (Doc. 21 8.) The appeal was then processed to the Ninth Circuit Court of Appeals. (Doc. 9.) On 22 November 9, 2023, Petitioner filed a motion for appointment of counsel and a motion for 23 extension of time to file an amended petition. (Docs. 12, 13.) 24 There currently exists no absolute right to appointment of counsel in habeas proceedings. 25 See, e.g., Anderson v. Heinze, 258 F.2d 479, 481 (9th Cir. 1958); Mitchell v. Wyrick, 727 F.2d 26 773, 774 (8th Cir. 1984). However, Title 18 U.S.C. § 3006A(a)(2)(B) authorizes the 27 appointment of counsel at any stage of the case if "the interests of justice so require." See Rule 28 8(c), Rules Governing Section 2254 Cases. In the present case, the Court does not find that the 1 1 interests of justice require the appointment of counsel at the present time. Petitioner requests an extension of time to file an amended petition. Generally, the filing 2 3 of a notice of appeal divests the district court of jurisdiction with respect to all matters involved 4 in the appeal. Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982) (per curiam); 5 Bermudez v. Duenas, 936 F.2d 1064, 1068 (9th Cir. 1991). Petitioner is advised that his 6 interlocutory appeal divested this Court of jurisdiction to proceed in this matter until such time as 7 the Ninth Circuit Court of Appeals resolves the appeal and remands the action to this Court for 8 further proceedings. Thus, Petitioner’s motion is dismissed with leave to renew once the case is 9 remanded to this Court. Accordingly, IT IS HEREBY ORDERED that Petitioner's motions for appointment of 10 11 counsel and extension of time are DENIED. 12 13 IT IS SO ORDERED. 14 Dated: /s/ Sheila K. Oberto November 13, 2023 . UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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