Goff v. Salinas

Filing 4

ORDER signed by Magistrate Judge Gregory G. Hollows on 12/22/11 ORDERING that in case number 2:11-cv-3251 GGH, Petitioners challenge to (a) his 2010 prison disciplinary conviction forpossession of alcohol within the institution is severed from (b) hi s challenge to the 2010 finding of guilt in a prison disciplinary hearing on a charge of forgery/falsification of documents; The Clerk of the Court is directed to open a new habeas action as to (a) in # 1 above, and the instant petition is to proceed as to (b) in #1. The Clerk of the Court is further directed to: (a) to assign the new action to the undersigned magistrate judge to whom the instant case is assigned and to make appropriate adjustment in the assignment of civil cases to compensate f or such assignment; (b) File and docket a copy of this order in the additional new case file opened for petitioner; (c) Place a copy of the petition filed on December 7, 2011, in the separate actions case docket; ( d) send petitioner two new forms fo r filing a habeas petition pursuant to 28 U.S.C. § 2254 used in this district; Petitioners 2 request for in forma pauperis status is GRANTED as to both petitions; The December 7, 2011 petition is dismissed in both cases with leave to amend within thirty days, as set forth herein; Petitioners December 7, 2011 motion for appointment of counsel 3 is DENIED without prejudice to a renewal of the motion at a later stage of the proceedings. (The new case number is 2:11-cv-3410 GGH)(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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THOMAS L. GOFF,

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Petitioner,

No. CIV S-11-3251 GGH P

vs.
M. SALINAS, Warden,

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Respondent.

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ORDER
/

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Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of

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habeas corpus pursuant to 28 U.S.C. § 2254, together with an application to proceed in forma

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pauperis.

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Examination of the in forma pauperis application reveals that petitioner is unable

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to afford the costs of suit. Accordingly, the application to proceed in forma pauperis will be

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granted. See 28 U.S.C. § 1915(a).

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Petitioner challenges two separate prison disciplinary decisions in 2010 for which

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he was assessed 60 days of time credit loss for forgery/falsification of documents, and 120 days

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of credit loss for possession of alcohol within the institution (for a total of 180 days of time credit

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loss). Petition, p. 1. Petitioner claims his right to due process was violated at each hearing. See

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Petition.
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A petitioner may challenge only one state court judgment in his petition. See Rule

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2(e) of the Rules Governing Section 2254 Cases in the United States District Court (a separate

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petition must be filed as to each judgment of a state court). Petitioner may not proceed to

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challenge both prison disciplinary decisions in one habeas petition. Moreover, because petitioner

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has combined his challenges into one petition, it is unclear as to what he is specifically claiming

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as to each separate finding of guilt.

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Because petitioner has listed his challenge to his having been found guilty of

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forgery/falsification of documents first, petitioner will be allowed to proceed in the instant case

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on that challenge. However, petitioner must proceed separately on his challenge to the finding of

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guilt against him for possession of alcohol within the institution. In both instances, however, the

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instant petition will be dismissed and petitioner must file an amended petition in each case,

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wherein he disentangles and separates his claims as to each separate disciplinary conviction.

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

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

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453, 460 (9th Cir. 1996). However, 18 U.S.C. § 3006A authorizes the appointment of counsel at

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

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§ 2254 Cases. In the present case, the court does not find that the interests of justice would be

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served by the appointment of counsel at the present time.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Petitioner’s challenge to (a) his 2010 prison disciplinary conviction for

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possession of alcohol within the institution is severed from (b) his challenge to the 2010 finding

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of guilt in a prison disciplinary hearing on a charge of forgery/falsification of documents;

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2. The Clerk of the Court is directed to open a new habeas action as to (a) in # 1
above, and the instant petition is to proceed as to (b) in #1.
3. The Clerk of the Court is further directed to:
(a) to assign the new action to the undersigned magistrate judge to whom
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the instant case is assigned and to make appropriate adjustment in the assignment of civil cases to

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compensate for such assignment;

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(b) File and docket a copy of this order in the additional new case file
opened for petitioner;

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(c) Place a copy of the petition filed on December 7, 2011, in the separate
action’s case docket;

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(d) send petitioner two new forms for filing a habeas petition pursuant to
28 U.S.C. § 2254 used in this district;

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4. Petitioner’s request for in forma pauperis status is granted as to both petitions;

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5.

The December 7, 2011 petition is dismissed in both cases with leave to

amend within thirty days, as set forth herein;

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6. Petitioner’s December 7, 2011 motion for appointment of counsel (Docket No.

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

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DATED: December 22, 2011

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/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE
GGH:009
goff3251.ord

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