Rathbun vs. Attorney General

Filing 26

ORDER signed by District Judge Virginia A. Phillips on 12/16/09 DENYING 25 Motion to Appoint Counsel. Respondent is ordered to serve petitioner with copy of its 14 Answer within 7 days of this order. Petitioner's traverse due within 30 days of being served. (Owen, K)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 16 17 18 19 20 21 22 23 24 25 26 27 28 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA STEVEN EDWARD RATHBUN, Case No. CIV S-06-1311 VAP Petitioner, v. K. PROPSER, Warden, [Motion filed on December 14, 2009] ORDER (1) DENYING MOTION FOR APPOINTMENT OF COUNSEL; (2) ORDERING COPY OF ANSWER BE SERVED UPON PETITIONER; and (3) EXTENDING TIME FOR PETITIONER TO FILE A TRAVERSE

Respondent. 15 ________________________ /

Petitioner is a state prisoner proceeding pro se in a habeas corpus action pursuant to 28 U.S.C. § 2254. The petition was filed on June 29, 2006. On January 5, 2009, the action was transferred to this Court pursuant to an Order of Designation of Judge to Serve in Another District Within the Ninth Circuit. On October 9, 2007, Petitioner filed a motion seeking (1) the appointment of counsel and (2) leave to file an untimely traverse. Respondent filed no opposition. On October 12, 2007, Magistrate Judge Brennan issued an order denying the appointment of counsel. On December 1,

1 2009, this Court granted Petitioner leave to file an 2 untimely traverse on the basis that he was never properly 3 served with a copy of Respondent's answer to his 4 petition. 5 6 On December 14, 2009, Petition filed the instant 7 motion, requesting that court appoint counsel in light of 8 the prejudice caused by (1) the delay in ruling on his 9 motion to file an untimely traverse and (2) the State's 10 failure to appropriately serve him with their answer. 11 12 There is no right to appointment of counsel in habeas The Court may appointment counsel at any See 18 U.S.C. § 3006A; see also, Rule 8(c), 13 proceedings. See Nevius v. Sumner, 105 F.3d 453, 460 (9th 14 Cir. 1996). 16 require." 15 stage of the proceedings "if the interests of justice so 17 Rules Governing Section 2254 Cases. The Court does not 18 find that the interests of justice would be served by the 19 appointment of counsel at this stage of the proceedings. 20 Therefore, Petitioner's motion for the appointment of 21 counsel. 22 23 However, in light of Petitioner's representation 24 that he still does not have a complete copy of the 25 State's answer to his petition, Respondent is hereby 26 ORDERED to serve Petitioner with a copy of its October 27 11, 2006 answer within seven (7) days of this Order, and 28
2

1 file a proof of service indicating such. 3 with Respondent's answer. 4 5 6 7 8 Dated: 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
3

Petitioner may

2 file a traverse within thirty (30) days of being served

December 16, 2009 VIRGINIA A. PHILLIPS United States District Judge