West v. Dickinson

Filing 55

ORDER signed by Magistrate Judge Dale A. Drozd on 4/20/2011 DENYING ptnr's 53 motion(s). (Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MACK A WEST, JR.,

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Petitioner,
vs.
KATHLEEN DICKINSON, Warden,
Respondent.

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No. CIV S-09-3147 FCD DAD P

ORDER
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Petitioner is a state prisoner proceeding pro se with a second amended petition for

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a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court is petitioner’s

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motion for an order to show cause, for a court order allowing discovery, for an evidentiary

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hearing, and for appointment of counsel.

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The court will deny petitioner’s motion in its entirety. First, on July 26, 2010, the

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court issued an order to show cause directing respondent to file a response to petitioner’s second

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amended petition. Respondent complied with that order by filing a motion to dismiss the petition

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that is now pending before the court. Accordingly, the issuance of an order to show cause would

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be inappropriate at this time.

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Second, the parties in a habeas proceeding are not entitled to discovery as a matter
of course. Bracy v. Gramley, 520 U.S. 899, 904 (1997); Bittaker v. Woodford, 331 F.3d 715,
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728 (9th Cir. 2003). Rather, “[a] party shall be entitled to invoke the processes of discovery

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available under the Federal Rules of Civil Procedure if, and to the extent that, the judge in the

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exercise of his [or her] discretion and for good cause shown grants leave to do so, but not

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otherwise.” Rule 6(a), Rules Governing § 2254 Cases. A request for discovery “must also

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include any proposed interrogatories and requests for admission, and must specify any requested

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documents.” Rule 6(b). Here, plaintiff’s motion for discovery does not show good cause and is

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incomplete in that it does not include any proposed discovery requests. Accordingly, the court

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will not issue a discovery order at this time.

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Third, petitioner’s request for an evidentiary hearing is premature. Rule 8(a),

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Rules Governing § 2254 Cases. As noted above, respondent’s motion to dismiss petitioner’s

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second amended petition is pending before the court. Petitioner’s motion for a stay and abeyance

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in response to respondent’s motion to dismiss is also pending before the court. The appropriate

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time for petitioner to request an evidentiary hearing in connection with his application for habeas

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relief is after respondent files an answer and petitioner files a traverse, if any. Accordingly, the

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court will deny petitioner’s motion for an evidentiary hearing at this time without prejudice to its

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renewal at the appropriate time.

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Finally, there currently exists no absolute right to appointment of counsel in

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habeas proceedings. See Nevius v. Sumner, 105 F.3d 453, 460 (9th Cir. 1996). However, 18

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U.S.C. § 3006A authorizes the appointment of counsel at any stage of the case “if the interests of

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justice so require.” See Rule 8(c), Fed. R. Governing § 2254 Cases. In the present case, the

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court does not find that the interests of justice would be served by the appointment of counsel at

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the present time. Accordingly, the court will deny petitioner’s motion for appointment of

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counsel.

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In accordance with the above, IT IS HEREBY ORDERED that petitioner’s April

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6, 2011 motion (Doc. No. 53) is denied.

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DATED: April 20, 2011.

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DAD:9
west3147.110+

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