Cummings v. The Attorney General of the State of California

Filing 6

ORDER signed by Magistrate Judge Dale A. Drozd on 3/8/2011 ORDERING that ptnr's 2 motion to proceed IFP is GRANTED; ptnr's application for habeas corpus is DISMISSED w/ leave to amend w/in 30 days; ptnr's 3 motion for the appointment of counsel is DENIED; and the clerk to send ptnr a habeas corpus form. (Yin, K)

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(HC) Cummings v. The Attorney General of the State of California Doc. 6 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 Respondents. / Petitioner has filed a form habeas corpus petition 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)(1). The court has conducted a cursory review of the petition in this action and determined that it must be dismissed with leave to amend. If petitioner elects to proceed with this action by filing an amended petition, he must allege facts clarifying what conviction he is seeking to challenge and state when and where that judgment of conviction was entered against him. He must also allege facts explaining why he believes his conviction was improperly 1 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA SHERMAN CUMMINGS, Petitioner, vs. ATTORNEY GENERAL OF THE STATE OF CALIFORNIA, ORDER No. CIV S-10-2657 DAD P 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 obtained in violation of his rights under the U.S. Constitution. The court notes that in his original petition, petitioner failed to assert any claims whatsoever. Also pending before the court is petitioner's motion for 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 2254 Cases. Here, the court does not find that the interests of justice would be served by the appointment of counsel at the present time. Accordingly, IT IS HEREBY ORDERED that: 1. Petitioner's motion to proceed in forma pauperis (Doc. No. 2) is granted; 2. Petitioner's application for writ of habeas corpus is dismissed with leave to amend within thirty days from the date of this order; 3. Any amended petition must be filed on the form employed by this court and must state all claims and prayers for relief on the form. It must bear the case number assigned to this action and must bear the title "Amended Petition"; 4. Petitioner's motion for appointment of counsel (Doc. No. 3) is denied; and 5. The Clerk of the Court is directed to send petitioner the form for habeas corpus application. DATED: March 8, 2011. DAD:9 cumm2657.amd 2

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