Lujan v. Yates

Filing 31

ORDER signed by Magistrate Judge Edmund F. Brennan on 1/20/09 ORDERING respondent to file a response to 22 Petition for Writ of Habeas Corpus w/in 60 days; reply due w/in 30 days of answer; if response is a motion, opposition or statement of non-opposition due w/in 30 days of motion, reply due w/in 15 days thereafter; petitioner's 30 motion for appointment of counsel is DENIED w/out prejudice; and petitioner's 28 request to file a traverse is DENIED as unnecessary.(Yin, K)

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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. JAMES YATES, Warden, Respondent. / Petitioner is a state prisoner without counsel seeking a writ of habeas corpus. See 28 U.S.C. 2254. On March 20, 2007, this court filed findings and recommendations, which recommended that the petition be dismissed because it contained unexhausted claims and granted petitioner leave to file an amended petition presenting only exhausted claims. On May 8, 2007, the district judge assigned to this action adopted this court's findings and recommendations. On April 24, 2007, petitioner filed an amended petition. On September 26, 2008, petitioner requested permission to file a traverse as well as a request for 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). The court may appoint counsel at any //// 1 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA MICHAEL V. LUJAN, Petitioner, No. CIV S-06-0923 LKK EFB P ORDER 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 stage of the proceedings "if the interests of justice so require." See 18 U.S.C. 3006A; see also, Rule 8(c), Rules Governing Section 2254 Cases. The court does not find that the interests of justice would be served by the appointment of counsel at this stage of the proceedings. Accordingly, it hereby is ORDERED that: 1. Respondent shall file and serve either an answer or a motion in response to petitioner's application within 60 days from the date of this order. See Rule 4, Fed. R. Governing 2254 Cases. Any response shall be accompanied by any and all transcripts or other documents relevant to the determination of the issues presented in the application. See Rules 4, 5, Fed. R. Governing 2254 Cases. 2. Petitioner's reply, if any, shall be filed and served within 30 days of service of an answer. 3. If the response to petitioner's application is a motion, petitioner's opposition or statement of non-opposition shall be filed and served within 30 days of service of the motion, and respondents' reply, if any, shall be filed within 15 days thereafter. 4. Petitioner's September 26, 2008, motion for appointment of counsel is denied without prejudice. 5. Petitioner's September 26, 2008 request to file a traverse is denied as unnecessary. DATED: January 20, 2009. 2

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