Johnson v. Walker

Filing 6

ORDER signed by Magistrate Judge Edmund F. Brennan on 7/31/09 ORDERING that petitioner's 2 request for leave to proceed IFP is GRANTED; respondent to file a response to the petition w/in 60 days; reply due w/in 30 days of answer; if response i s a motion, opposition or statement of non-opposition due w/in 30 days of motion, reply due w/in 15 days thereafter; the clerk to serve a copy of this order, a copy of the petition and the Order re Consent on the Attorney General; petitioner's 1/8/09 request for appointment of counsel is DENIED w/out prejudice.(cc: Michael Farrell) (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 Petitioner has filed two habeas petitions in this court, both challenging separate prison disciplinary actions. On January 16, 2009, petitioner asked the court to clarify for him which of his case numbers corresponds to which of his disciplinary action challenges. Petitioner is advised that, in this case, he is challenging a May 6, 2007 rules violation conviction (Log # S21 1 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA LACEDRIC W. JOHNSON, Petitioner, vs. JAMES WALKER, Respondent. / Petitioner, a state prisoner proceeding without counsel, seeks a writ of habeas corpus. See 28 U.S.C. 2254. Petitioner seeks leave to proceed in forma pauperis. See 28 U.S.C. 1915(a). Examination of the in forma pauperis affidavit reveals that petitioner is unable to afford the costs of suit. A judge "entertaining an application for a writ of habeas corpus shall forthwith award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person detained is not entitled thereto." 28 U.S.C. 2243. It is not apparent from the face of the application that the petitioner is not entitled to relief.1 ORDER No. CIV S-09-0067 EFB P 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 Petitioner has also requested that the court appoint 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 appointment counsel at any 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 is hereby ordered that: 1. Petitioner's request for leave to proceed in forma pauperis is granted. 2. 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. 3. Petitioner's reply, if any, shall be filed and served within 30 days of service of an answer. 4. 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. 5. The Clerk of the Court shall serve a copy of this order together with a copy of petitioner's January 8, 2009, petition for a writ of habeas corpus with any and all attachments on Michael Patrick Farrell, Senior Assistant Attorney General for the State of California. The Clerk of the Court also shall serve on the Senior Assistant Attorney General the consent form used in this court. //// 07-05-0565) for possession of contraband. 2 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 6. Petitioner's January 8, 2009, request for appointment of counsel is denied without prejudice. DATED: July 31, 2009. 3

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