Rood v. Swarthout

Filing 20

ORDER signed by Magistrate Judge Allison Claire on 12/20/12 ordering the clerk shall re-serve on petitioner a copy of the court's 09/26/12 order denying petitioner's motion to stay 14 . Petitioner's 11/28/12 letter 18 is construed as a motion for extension of time, and, so construed, is granted. Petitioner shall file and serve a traverse within 60 days of the filing date of this order. Petitioner's 12/05/12 motion to appoint counsel 19 is denied without prejudice to a renewal of the motion at a later stage of the proceedings. (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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RICHARD VINCENT ROOD,
Petitioner,

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vs.
GARY SWARTHOUT,
Respondent.

ORDER
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No. 2:12-cv-1476 AC P

Petitioner proceeds pro se and in forma pauperis on a petition filed pursuant to 28

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U.S.C. § 2254. He has filed a letter dated November 26, 2012 (Doc. No. 18) seeking

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information about the court’s recent reassignment order, as well as an application for

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appointment of counsel (Doc. No. 19).

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The November 28, 2012 Letter

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On November 28, 2012, petitioner filed with the court a letter requesting further

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information about the court’s November 19, 2012 order reassigning this action from Magistrate

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Judge Gregory G. Hollows to Magistrate Judge Allison Claire. See Doc. No. 18. Petitioner’s

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letter reads that the court had denied his petition on October 18, 2012, and that he has done

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nothing further with the case since then. Id.
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A review of the docket for this action reflects that, on October 18, 2012,

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respondent filed his answer to the petition. See Doc. No. 15. The court’s most recent order,

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filed September 26, 2012, denied petitioner’s one-page motion seeking appointment of counsel

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and a stay of the petition. See Doc. No. 14. To the extent petitioner believes that the court’s

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September 26, 2012 order was a denial of his petition, the court advises petitioner that it was not,

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and was instead a denial only of his then-pending request for a stay of the action. Id. The action

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proceeds on petitioner’s original petition.

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The court will accordingly direct that the Clerk re-serve a copy of the September

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26, 2012 order on petitioner. Because petitioner may file a traverse in response to respondent’s

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October 18, 2012 answer, the court will construe the November 28, 2012 letter as a motion for

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extension of time to file the traverse. So construed, the motion will be granted.

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Motion for Appointment of Counsel

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On December 5, 2012, petitioner moved for the appointment of counsel.

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Petitioner previously sought counsel in this action, which was denied by orders entered on July

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5, 2012 and September 26, 2012. The gravamen of petitioner’s request appears to be that he

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would like counsel appointed in order to investigate new claims, such as the ineffective

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assistance of his trial and appellate counsel, the marriage of the trial judge to a “major crimes

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investigator with the arresting agency,” and the impact of petitioner’s 2008 knee injury on his

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ability to commit this crime. However, petitioner fails to explain why these issues are new, and

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why he did not raise them with the state court. For example, he was presumably aware of his

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own knee injury during his 2009 trial, yet fails to explain why he did not raise in his state

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collateral proceedings either the fact of the injury, or his attorney’s ineffectiveness in not raising

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it. Petitioner also fails to explain when he became aware of the relationship between the trial

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judge and an officer with the arresting agency – and, more importantly, whether the officer was

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in any way involved in petitioner’s arrest.

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There currently exists no absolute right to appointment of counsel in habeas

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

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§ 3006A authorizes the appointment of counsel at any stage of the case “if the interests of justice

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

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cited above, the court does not find that the interests of justice would be served by the

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

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for appointment of counsel without prejudice to renewal at a later stage of the proceedings.

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Good cause appearing, IT IS HEREBY ORDERED that:

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1. The Clerk shall re-serve on petitioner a copy of the court’s September 26,

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2012 order denying petitioner’s motion to stay (Doc. No. 14);

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2. Petitioner’s November 28, 2012 letter (Doc. No. 18) is construed as a motion
for extension of time to file the traverse, and, so construed, is granted;

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3. Petitioner shall file and serve a traverse within 60 days of the filing date of this
order; and

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4. Petitioner’s December 5, 2012 motion to appoint counsel (Doc. No. 19) is

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

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DATED: December 20, 2012.

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ALLISON CLAIRE
UNITED STATES MAGISTRATE JUDGE

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ac:rb/rood1476.110.111

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