Lyons, et al v. White, et al

Filing 80

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 12/16/09 ORDERING that petitioner's motion for appointment of counsel filed 09/11/09 78 is denied. Also, RECOMMENDING that petitioner's motion for relief from judgment, filed 09/11/09 be dismissed. MOTION for Relief from judgment referred to Judge Garland E. Burrell. Objections due within 10 days. (Plummer, M) Modified on 1/21/2010 (Kaminski, H).

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 vs. THEO WHITE, Respondent. / Petitioner moves for relief from this court's order and judgment entered February 28, 2001, denying his petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner also moves for appointment of counsel. (Doc. 78, 79). Petitioner filed similar motions in 2006, which were denied by this court on March 14, 2007, and May 5, 2007. (Doc. 74, 77). As in his prior motions, petitioner seeks relief pursuant to Fed. R. Civ. P. 60(b), to obtain reconsideration of the court's dismissal of his original Claims 1, 2, 5, 6, and 7, on the ground that petitioner has obtained new evidence demonstrating his actual innocence. This evidence is purportedly set forth in numerous affidavits (not provided to the court) which together demonstrate that the victim of the assaults for which plaintiff was convicted and is presently incarcerated, was in fact a willing participant. The instant motion for relief from judgment is construed as a successive ORDER & FINDINGS AND RECOMMENDATIONS IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA WILLIE CARL LYONS, Petitioner, No. CIV S-96-0784 GEB GGH P

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application for a writ of habeas corpus, presenting the same claims raised in petitioner's initial application. The instant application must therefore be dismissed. See 28 U.S.C. § 2244(b)(1). Petitioner may pursue a successive habeas corpus application in this court pursuant only to authorization by the Ninth Circuit Court of Appeals. See 28 U.S.C. § 2244(3)(A). Petitioner also requests appointment of counsel. There currently exists no absolute right to appointment of counsel in habeas proceedings. See Nevius v. Sumner, 105 F.3d 453, 460 (9th Cir. 1996). However, 18 U.S.C. § 3006A authorizes the appointment of counsel at any stage of the case "if the interests of justice so require." See Rule 8(c), Fed. R. Governing § 2254 Cases. The court does not find that the interests of justice would be served by appointment of counsel at the present time. Accordingly, IT IS HEREBY ORDERED that petitioner's motion for appointment of counsel, filed September 11, 2009 (Doc. 78), is DENIED. Further, IT IS HEREBY RECOMMENDED that petitioner's motion for relief from judgment, filed September 11, 2009 (Doc. 79), be DISMISSED. These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within ten (10) days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within ten (10) days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). DATED: December 16, 2009 /s/ Gregory G. Hollows GREGORY G. HOLLOWS UNITED STATES MAGISTRATE JUDGE
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