Nichols v. Evans

Filing 5

ORDER signed by Magistrate Judge Gregory G. Hollows on 2/6/09 GRANTING petitioner's 2 Motion to Proceed IFP. Respondents directed to file a Response to Habeas Petition w/in 60 days from date of this Order. Petitioner's Reply, Opposition, or Statement of Non-Opposition shall be filed and served w/in 30 days after service of responsive pleading. Respondents' Reply, if any shall be filed and served w/in 15 days thereafter. Clerk shall serve a copy of Order, Consent / Reassignment form, and copy of Habeas Corpus Petition on Michael Patrick Farrell, Senior Assistant Attorney General. Petitioner's 3 Motion for Appointment of Counsel is DENIED. (Marciel, M)

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. M. EVANS, Respondent. / Petitioner, a state prisoner proceeding pro se, 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. 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 requested the 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 1 ORDER IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA JAMES J. NICHOLS, Petitioner, No. CIV S-09-0249 GGH P

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§ 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. In accordance with the above, IT IS HEREBY ORDERED that: 1. Petitioner's application to proceed in forma pauperis (no. 2) is granted; 2. Respondents are directed to file a response to petitioner's habeas petition within sixty 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; 5. The Clerk of the Court shall serve a copy of this order, the consent/reassignment form contemplated by Appendix A(k) to the Local Rules of this court 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; 6. Petitioner's motion for appointment of counsel (no. 3) is denied. DATED: February 6, 2009 /s/ Gregory G. Hollows

22 UNITED STATES MAGISTRATE JUDGE 23 24 25 26
nich0249.110

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