Rood v. Swarthout

Filing 53

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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RICHARD VINCENT ROOD, 12 13 14 No. 2:12-cv-01476 AC P Petitioner, v. ORDER GARY SWARTHOUT, 15 Respondent. 16 17 Petitioner is a state prisoner proceeding pro se and in forma pauperis in this habeas corpus 18 action filed pursuant to 28 U.S.C. § 2254. This action proceeds on petitioner’s First Amended 19 Petition, filed March 30, 2015. ECF No. 45. Respondent has been directed to file a response. 20 ECF No. 46. 21 Petitioner again requests appointment of counsel. ECF No. 51. This is petitioner’s fourth 22 request. Petitioner asserts that appointment of counsel is necessary to investigate the matters 23 asserted in Grounds Two through Four of his petition, specifically, that the trial judge failed to 24 disclose her alleged conflict of interest (Ground Two); that petitioner was identified in an 25 unconstitutionally suggestive lineup (Ground Three); and that trial counsel was ineffective in 26 several ways (Ground Four). Petitioner asserts that he is indigent, imprisoned, unlearned in the 27 law, and that the identified claims will require legal, expert and medical investigation to disclose 28 evidence favorable to petitioner. 1 1 As petitioner has previously been informed, appointment of counsel in a habeas 2 proceeding is appropriate “if the interests of justice so require.” See18 U.S.C. § 3006A(a)(2)(B); 3 28 U.S.C. § 2254(h). However, there is no absolute right to appointment of counsel in habeas 4 proceedings. See Nevius v. Sumner, 105 F.3d 453, 460 (9th Cir. 1996). 5 In the present case, the court again finds that appointment of counsel is not required in the 6 interests of justice at the present time. This action will proceed on the parties’ respective briefing, 7 which is in progress, based on the existing record. No further investigation is warranted at this 8 time. Should the court decide, based on review of the completed briefing, that an evidentiary 9 hearing is warranted, the court will then determine, sua sponte, whether appointment of counsel 10 for petitioner is appropriate. See 28 U.S.C. § 2254(e)(2); Rule 8(c), Fed. R. Governing § 2254 11 Cases. 12 Accordingly, IT IS HEREBY ORDERED that petitioner’s May 6, 2015 request for 13 appointment of counsel, ECF No. 51, is denied without prejudice. 14 DATED: May 8, 2015 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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