Mendoza, et al v. Terhune, et al

Filing 55

ORDER signed by Magistrate Judge Gregory G. Hollows on 7/10/15 denying 54 Motion to transfer, construed as a motion to appoint new counsel. Clerk of the Court shall additionally serve this order on petitioner at Mule Creek State Prison. (Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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PEDRO MENDOZA,

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No. 2:98-cv-1857 MCE GGH P

Petitioner,
v.

ORDER

JEFFREY BEARD,,
Respondent.

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Presently before the court is petitioner’s motion to “transfer case to district judge and

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determine current and proposed C.J.A. counsel[‘]s ability to provide constitutional level

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representation.” (ECF No. 54.)

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Pursuant to court order, Carolyn Wiggin of the Federal Defender’s Office was assigned to

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represent petitioner on November 4, 2014. (ECF No. 36, 41.) After this matter was referred on

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May 29, 2015 to the Federal Defender for CJA Panel for investigation of petitioner’s previous

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counsel, Ms. Weinheimer, the Federal Defender (Carolyn Wiggin) sought to withdraw as counsel

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in order to avoid any conflict of interest, and substitute Mark Eibert as counsel for petitioner.

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(ECF No. 52.) That request was approved by the court on June 18, 2015. (ECF No. 53.)

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Petitioner, in a pro se filing dated July 1, 2015, now contends that the Federal Defender should

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not represent him when it is “embroiled in such a conflict of interest,” and that any CJA Panel

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attorney appointed by the Federal Defender “would contemplate a conflict of interest.” Petitioner
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is incorrect. The Federal Defender has already withdrawn as counsel based on its duties in the

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Weinheimer investigation. A conflict of interest is not created with the mere appointment of CJA

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Panel attorney Eibert by the Federal Defender as his appointing authority. The representational

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duties of a CJA Panel appointed attorney in representing petitioner are independent of the Federal

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Defender’s Office.

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Accordingly, IT IS ORDERED that:

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1. Petitioner’s motion to transfer, construed as a motion to appoint new counsel, filed July

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1, 2015 (ECF No. 54), is denied.
2. The Clerk of the Court shall additionally serve this order on petitioner at Mule Creek

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State Prison.

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Dated: July 10, 2015

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/s/ Gregory G. Hollows

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UNITED STATES MAGISTRATE JUDGE

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GGH:076/Mend1857.confl

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