Rogers v. Martell

Filing 12

ORDER signed by Magistrate Judge Craig M. Kellison on 04/29/11 ordering petitioner's petition for a writ of habeas corpus 1 is summarily dismissed without prejudice. Petitioner's request for the appointment of counsel 2 is denied. The court declines to issue a certificate of appealability. The clerk of the court is directed to enter judgment and close this case. CASE CLOSED.(Plummer, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MICHAEL RAY ROGERS,

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No. CIV S-10-2656-CMK-P

Petitioner,
vs.

ORDER

M. MARTELL,
Respondent.
/
Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of

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habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner has consented to Magistrate Judge

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jurisdiction pursuant to 28 U.S.C. § 636(c) and no other party has been served or appeared in the

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action. Pending before the court is petitioner’s petition for a writ of habeas corpus (Doc. 1).

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On October 29, 2010, the court directed petitioner to show cause in writing why

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this petition should not be summarily dismissed for failure to exhaust his state court remedies. In

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response, petitioner filed a document he titled a request for voluntary dismissal pursuant to

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Federal Rule of Civil Procedure 4(a)(1). In this document, he states that he has a mental health

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issues, including Bi-Polar disorder, and restates his request for appointment of counsel. He does

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not, however, address the reasons the undersigned set forth for dismissing this action.
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As to plaintiff’s request for counsel, there currently exists no absolute right to

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appointment of counsel in habeas proceedings. See Nevius v. Sumner, 105 F.3d 453, 460 (9th

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

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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.

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Because petitioner has not exhausted his state court remedies, his petition is

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unexhausted, and is subject to summary dismissal under Rule 4 of the Federal Rules Governing

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Section 2254 Cases.

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Pursuant to Rule 11(a) of the Federal Rules of Governing Section 2254 Cases, the

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court has considered whether to issue a certificate of appealability. Before petitioner can appeal

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this decision, a certificate of appealability must issue. 28 U.S.C. § 2253(c); Fed. R. App. P.

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22(b). A certificate of appealability may issue under 28 U.S.C. § 2253 “only if the applicant has

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made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The

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court must either issue a certificate of appealability indicating which issues satisfy the required

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showing or must state the reasons why such a certificate should not issue. Fed. R. App. P. 22(b).

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Where, as here, the petition was dismissed on procedural grounds, a certificate of

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appealability “should issue if the prisoner can show: (1) ‘that jurists of reason would find it

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debatable whether the district court was correct in its procedural ruling’; and (2) ‘that jurists of

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reason would find it debatable whether the petition states a valid claim of the denial of a

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constitutional right.’” Morris v. Woodford, 229 F.3d 775, 780 (9th Cir. 2000) (quoting Slack v.

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McDaniel, 529 U.S. 473, 120 S. Ct. 1595, 1604 (2000)). After careful review of the entire record

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herein, this court finds that petitioner has not satisfied the first requirement for issuance of a

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certificate of appealability in this case. Specifically, there is no showing that jurists of reason

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would find it debatable whether petitioner exhausted the claims raised in the petition.

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///
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Accordingly, IT IS HEREBY ORDERED that:

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Petitioner’s petition for a writ of habeas corpus (Doc. 1) is summarily

dismissed, without prejudice;

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2.

Petitioner’s request for the appointment of counsel is denied;

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3.

The court declines to issue a certificate of appealability; and

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4.

The Clerk of the Court is directed to enter judgment and close this case.

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DATED: April 29, 2011
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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