Foley v. Rowland

Filing 39

ORDER denying 36 Motion to Appoint Counsel and denying 37 Motion for default signed by Magistrate Judge John F. Moulds on 09/12/12. (Plummer, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MARK D. FOLEY,

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Petitioner,

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No. CIV S-01-0714 MCE JFM P

vs.

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JAMES ROWLAND, et al.,

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Respondents.

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ORDER
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Petitioner is a state prisoner proceeding with an application for a writ of habeas

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corpus pursuant to 28 U.S.C. § 2254. Judgment was entered in this action on August 18, 2004.

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On July 18, 2011, petitioner filed, pro se, a request “that the court allow [him] back in to the

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courts to continue [his] appeal (rights) process afforded to me under the United States

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Constitution.” By order filed July 2, 2012, petitioner’s request was construed as a motion for

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relief from judgment pursuant to Fed. R. Civ. P. 60(b)(6). In that order, respondents were

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granted a period of twenty-one days in which to respond to the motion and petitioner was granted

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a period of fourteen days to file a reply. After receiving an extension of time, on August 14,

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2012 respondents filed an opposition to the motion. On September 11, 2012, the court signed

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findings and recommendations recommending petitioner’s motion be denied.

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On September 4, 2012, petitioner filed a motion for default and a motion for

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appointment of counsel. In the motion for default, petitioner contends that respondent is in

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default for failing to timely respond to the court’s July 2, 2012 order. However, as noted above,

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respondent received an extension of time to respond to the motion, and respondent’s August 14,

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2012 response was timely filed. Petitioner’s motion for default will be denied.

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There currently exists no absolute right to appointment of counsel in habeas

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proceedings. See Nevius v. Sumner, 105 F.3d 453, 460 (9th Cir. 1996). However, 18 U.S.C.

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§ 3006A authorizes the appointment of counsel at any stage of the case “if the interests of justice

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so require.” See Rule 8(c), Fed. R. Governing § 2254 Cases. In the present case, the court does

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not find that the interests of justice would be served by the appointment of counsel. Accordingly,

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petitioner’s motion for appointment of counsel will be denied.

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. Petitioner’s September 4, 2012 motion for default is denied; and

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2. Petitioner’s September 4, 2012 motion for appointment of counsel is denied.

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DATED: September 12, 2012.

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fole0714.o2

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