Andrade v Cate

Filing 28

ORDER signed by Magistrate Judge Allison Claire on 10/28/13 ordering respondent is directed to file an answer to ground 5 of the petition within 60 days. Petitioner must file any reply to the answer within 60 days thereafter. Petitioner's 10/07/13 request for appointment of counsel 27 is denied without prejudice to a renewal of the motion at a later stage of the proceedings. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ADRIAN FRANK ANDRADE,

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No. 2:09-cv-2270 KJM AC P

Petitioner,
v.

ORDER

MATTHEW CATE,
Respondent.

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Petitioner is a state prisoner now proceeding pro se in this habeas matter. On September

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24, 2013, the district judge vacated the January 18, 2012 Order adopting Magistrate Judge

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Bommer’s Findings and Recommendations and denying the instant habeas petition. District

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Judge Mueller re-opened this case on petitioner’s pro se Rule 60(b)(6) motion, on the ground that

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petitioner’s retained habeas counsel had “effectively abandoned him” following the filing of the

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traverse in this case. See Order at ECF No. 24. Petitioner’s counsel was faulted for having failed

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to object to the findings and recommendations, to seek a certificate of appealability, to file a

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notice of appeal, or even to notify petitioner himself about the decision denying his petition. In

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addition, Judge Mueller noted that only four of the five grounds of the petition had been

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addressed in the answer or reply or had been considered by the then-assigned magistrate judge,

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and found that this omission also warranted relief under Rule 60(b). The unanswered ground of

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the petition is Ground Five: “There was insufficient evidence to sustain a conviction for murder
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or robbery as the accomplice’s testimony, upon which the prosecution’s case was predicated, was

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not sufficiently corroborated.” Petition (ECF No. 1) at 17. This case has been assigned to the

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undersigned for further proceedings.

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Petitioner has requested the appointment of counsel. There currently exists no absolute

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right to appointment of counsel in habeas proceedings. See Nevius v. Sumner, 105 F.3d 453, 460

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(9th Cir. 1996). However, 18 U.S.C. § 3006A authorizes the appointment of counsel at any stage

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of the case “if the interests of justice so require.” See Rule 8(c), Fed. R. Governing § 2254 Cases.

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In the present case, the court does not find that the interests of justice would be served by the

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appointment of counsel at the present time.

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Accordingly, IT IS ORDERED that:

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1. Respondent is directed to file an answer to ground five of the petition within 60 days;

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2. Petitioner must file any reply to the answer within 60 days thereafter; and

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3. Petitioner’s October 7, 2013 request for appointment of counsel (ECF No. 27) is

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denied without prejudice to a renewal of the motion at a later stage of the proceedings.

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DATED: October 28, 2013

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AC:009
andr2270.ord

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