Lees v. Hedgepeth

Filing 7

ORDER signed by Magistrate Judge Dale A. Drozd on 7/22/11 ORDERING that 5 Motion to Appoint Counsel is DENIED; Petitioner is granted 30 days from the date of service of this order to file a second amended petition. Clerk of the Court is directed to send petitioner the form petition for a writ of habeas corpus by a state prisoner. (Dillon, 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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ALEXANDER LEES,
Petitioner,

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No. CIV S-11-1422 DAD P

vs.

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A. HEDGEPETH, Warden,

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Respondent.

ORDER
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Petitioner, a state prisoner proceeding pro se, filed an application for a writ of

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habeas corpus pursuant to 28 U.S.C. § 2254. On June 9, 2011, the court ordered petitioner to

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submit the filing fee or to file an in forma pauperis application. Court records indicate that

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petitioner has paid the filing fee.

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In the order referred to above the court also dismissed petitioner’s habeas petition

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and granted petitioner leave to file an amended petition to clarify the nature of his habeas claims

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and to provide this court with further information regarding his post-conviction appeals and

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actions. The court also advised petitioner that he was required to exhaust each of his habeas

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claims in state court. Petitioner has now filed a request for the appointment of counsel and a

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one-page document styled, “Amended Petition,” which merely informs the court that petitioner

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has obtained further information about his appeal from his underlying conviction filed with the

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California Supreme Court.
Petitioner’s request for the appointment of counsel will be denied. There

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currently exists no absolute right to appointment of counsel in habeas proceedings. See Nevius

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v. Sumner, 105 F.3d 453, 460 (9th Cir. 1996). However, 18 U.S.C. § 3006A authorizes the

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appointment of counsel at any stage of the case “if the interests of justice so require.” See Rule

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8(c), Fed. R. Governing § 2254 Cases. In the present case, the court does not find that the

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interests of justice would be served by the appointment of counsel at the present time.
The court will, however, grant petitioner additional time to file a second amended

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petition. Petitioner is advised to refer to the court’s June 9, 2011 order and to answer each

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question posed in the court’s form federal habeas petition.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Petitioner’s June 24, 2011 motion for appointment of counsel (Doc. No. 5) is

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denied;
2. Petitioner is granted thirty days from the date of service of this order to file a

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second amended petition that complies with the requirements of the Federal Rules of Civil

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Procedure; the second amended petition must bear the docket number assigned this case and

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must be labeled “Second Amended Petition;” petitioner must use the form petition provided by

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the Clerk of the Court and answer each question in the form petition;
3. The Clerk of the Court is directed to send petitioner the form petition for a writ

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of habeas corpus by a state prisoner; and
4. Petitioner’s failure to comply with this order will result in the dismissal of this

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action.

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DATED: July 22, 2011.

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DAD:4
lees1422.lta2

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