Parvin v. Cate

Filing 6

ORDER signed by Magistrate Judge John F. Moulds on 9/8/09 ORDERING that petitoner's 2 request to proceed IFP is GRANTED; respondents to file an answer w/in 45 days; traverse due on or before 30 days of answer; petitioner's 5 motion to appoint counsel is DENIED w/out prejudice; and the clerk to serve a copy of this order, a copy of the petition and the Order re Consent on the A. G.. (cc: Michael Farrell)(Yin, K)

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. MATTHEW CATE, et al., Respondents. / Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, together with a request to proceed in forma pauperis and a motion for appointment of counsel. Examination of the in forma pauperis affidavit reveals that petitioner is unable to afford the costs of suit. Accordingly, the request for leave to proceed in forma pauperis is granted. See 28 U.S.C. § 1915(a). Since petitioner may be entitled to the requested relief if the claimed violation of constitutional rights is proved, respondents will be directed to file an answer to the petition. 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 1 ORDER IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA JOHN ALAN PARVIN, Petitioner, No. 2:09-2198-JFM (HC)

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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. According, petitioner's motion for appointment of counsel will be denied without prejudice. In accordance with the above, IT IS HEREBY ORDERED that: 1. Petitioner's request to proceed in forma pauperis is granted; 2. Respondents are directed to file an answer within forty-five days from the date of this order. See Rule 4, Rules Governing Section 2254 Cases. Respondents shall include with the answer any and all transcripts or other documents relevant to the determination of the issues presented in the application. Rule 5, Rules Governing Section 2254 Cases; 3. Petitioner's traverse, if any, is due on or before thirty days from the date respondents' answer is filed; 4. Petitioner's August 31, 2009 motion to appoint counsel is denied without prejudice; and 5. The Clerk of the Court shall serve a copy of this order together with a copy of petitioner's application for writ of habeas corpus and an Order Re Consent or Request for Reassignment on Michael Patrick Farrell, Senior Assistant Attorney General. DATED: September 8, 2009.

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