Rood v. Swarthout
Filing
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ORDER signed by Magistrate Judge Allison Claire on 5/8/2015 DENYING without prejudice petitioner's 51 request for appoint of counsel.(Yin, K)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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RICHARD VINCENT ROOD,
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No. 2:12-cv-01476 AC P
Petitioner,
v.
ORDER
GARY SWARTHOUT,
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Respondent.
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Petitioner is a state prisoner proceeding pro se and in forma pauperis in this habeas corpus
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action filed pursuant to 28 U.S.C. § 2254. This action proceeds on petitioner’s First Amended
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Petition, filed March 30, 2015. ECF No. 45. Respondent has been directed to file a response.
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ECF No. 46.
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Petitioner again requests appointment of counsel. ECF No. 51. This is petitioner’s fourth
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request. Petitioner asserts that appointment of counsel is necessary to investigate the matters
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asserted in Grounds Two through Four of his petition, specifically, that the trial judge failed to
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disclose her alleged conflict of interest (Ground Two); that petitioner was identified in an
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unconstitutionally suggestive lineup (Ground Three); and that trial counsel was ineffective in
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several ways (Ground Four). Petitioner asserts that he is indigent, imprisoned, unlearned in the
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law, and that the identified claims will require legal, expert and medical investigation to disclose
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evidence favorable to petitioner.
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As petitioner has previously been informed, appointment of counsel in a habeas
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proceeding is appropriate “if the interests of justice so require.” See18 U.S.C. § 3006A(a)(2)(B);
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28 U.S.C. § 2254(h). However, there is 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).
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In the present case, the court again finds that appointment of counsel is not required in the
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interests of justice at the present time. This action will proceed on the parties’ respective briefing,
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which is in progress, based on the existing record. No further investigation is warranted at this
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time. Should the court decide, based on review of the completed briefing, that an evidentiary
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hearing is warranted, the court will then determine, sua sponte, whether appointment of counsel
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for petitioner is appropriate. See 28 U.S.C. § 2254(e)(2); Rule 8(c), Fed. R. Governing § 2254
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Cases.
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Accordingly, IT IS HEREBY ORDERED that petitioner’s May 6, 2015 request for
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appointment of counsel, ECF No. 51, is denied without prejudice.
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DATED: May 8, 2015
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