Rollo v. Subia et al

Filing 5

ORDER signed by Judge Dale A. Drozd on 11/14/07 ORDERING that petitioner's appl to proceed IFP is GRANTED. Respondents' response to the habeas petition shall be filed within 30 days from the date of this order. If the response is an answer , petitioner's reply, if any, shall be filed and served within 30 days after service of the answer. If the response is a motion, petitioner's oppos or statement of non-oppos shall be filed and served within 30 days after service of the mot ion. Respondents' reply, if any, shall be filed and served within 15 days thereafter. The Clerk shall serve a copy of this order and a copy of the petition for writ of hc on Michael Farrell, Sr Asst AG. Petitioner's 11/9/07 requests for appointment of counsel, an evidentiary hearing, and judicial notice are DENIED without prejudice.(Kastilahn, A)

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(HC)Rollo v. Subia et al Doc. 5 Case 2:07-cv-02421-GEB-DAD Document 5 Filed 11/15/2007 Page 1 of 3 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. R. SUBIA, et al., Respondents. / Petitioner, a state prisoner at Mule Creek State Prison, is proceeding pro se and has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. 2254, together with an application to proceed in forma pauperis. Petitioner challenges the October 2006 decision of the Board of Parole Hearings to deny petitioner parole. Examination of the in forma pauperis application reveals that petitioner is unable to afford the costs of suit. Accordingly, the application to proceed in forma pauperis will be granted. See 28 U.S.C. 1915(a). Since petitioner may be entitled to relief if the claimed violation of constitutional rights is proved, respondents will be directed to file a response to petitioner's habeas petition. Petitioner has also requested the appointment of counsel, an evidentiary hearing be held, and that judicial notice be taken of his attached state court petitions, state court 1 Dockets.Justia.com IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA GARY ROLLO, Petitioner, No. CIV S-07-2421 GEB DAD P ORDER Case 2:07-cv-02421-GEB-DAD Document 5 Filed 11/15/2007 Page 2 of 3 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 dispositions, and a 2007 Santa Clara County Superior Court decision in the case of In re Arthur Criscione, wherein the court granted the habeas petition and ordered a new parole hearing. As to petitioner's 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). 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. In the present case, the court does not find that the interests of justice would be served by the appointment of counsel at the present time. Petitioner's request for an evidentiary hearing will be denied as premature and without prejudice. Petitioner has not explained why an evidentiary hearing is necessary in this case and fails to satisfy the requirements set forth at 28 U.S.C. 2254(e)(2). Lastly, petitioner's request for judicial notice will be denied without prejudice. Petitioner has not explained what fact he is attempting to establish by the attached documents or why they are the proper subject of judicial notice. In accordance with the above, IT IS HEREBY ORDERED that: 1. Petitioner's application to proceed in forma pauperis is granted; 2. Respondents are directed to file a response to petitioner's habeas petition within thirty days from the date of this order. See Rule 4, Fed. R. Governing 2254 Cases. An answer shall be accompanied by all transcripts and other documents relevant to the issues presented in the petition. See Rule 5, Fed. R. Governing 2254 Cases; 3. If the response to the habeas petition is an answer, petitioner's reply, if any, shall be filed and served within thirty days after service of the answer; 4. If the response to the habeas petition is a motion, petitioner's opposition or statement of non-opposition to the motion shall be filed and served within thirty days after service of the motion, and respondents' reply, if any, shall be filed and served within fifteen days thereafter; 2 Case 2:07-cv-02421-GEB-DAD Document 5 Filed 11/15/2007 Page 3 of 3 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 DAD:cm/4 roll2421.100+ 5. The Clerk of the Court shall serve a copy of this order together with a copy of the petition for writ of habeas corpus pursuant to 28 U.S.C. 2254 on Michael Patrick Farrell, Senior Assistant Attorney General; and 6. Petitioner's November 9, 2007 request for appointment of counsel, request for an evidentiary hearing, and request for judicial notice are denied without prejudice. DATED: November 14, 2007. 3

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