Leonard v. Hartley

Filing 9

ORDER signed by Magistrate Judge Craig M. Kellison on 10/9/12 ORDERING Petitioner's motion for leave to proceed in forma pauperis 8 is granted; Petitioner's motion for appointment of counsel 3 is denied without prejudice to renewal, at the earliest, after a response to the petition has been filed. Respondent(s) shall file a response to petitioner's petition within 60 days from the date of service of this order; Concurrent with the response to the petition, respondent(s) shall also file a response to petitioner's motion for a stay-and-abeyance order 2 ; Petitioner's traverse or reply (if an answer to the petition is filed), if any,or opposition or statement of non-opposition (if a motion in response to t he petition is filed) shall be filed and served within 30 days of service of respondent's response; and the Clerk shall serve a copy of this order, together with a copy of petitioner's petition for a writ of habeas corpus and the court's Order re: Consent or Request for Reassignment on Michael Patrick Farrell, Senior Assistant Attorney General.(Matson, R)

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

DAVID G. LEONARD,

12
13
14
15
16
17
18
19

No. 2:12-CV-2161-CMK-P

Petitioner,
vs.

ORDER

JAMES HARTLEY,
Respondent.
/
Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254.
Petitioner seeks leave to proceed in forma pauperis. Petitioner has submitted the

20

affidavit required by 28 U.S.C. § 1915(a) showing that petitioner is unable to prepay fees and

21

costs or give security therefor. The request will be granted.

22

Petitioner seeks the appointment of counsel. There currently exists no absolute

23

right to appointment of counsel in habeas proceedings. See Nevius v. Sumner, 105 F.3d 453,

24

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

25

stage of the case “if the interests of justice so require.” See Rule 8(c), Fed. R. Governing § 2254

26

Cases. In the present case, the court does not find that the interests of justice would be served by
1

1

the appointment of counsel at the present time.

2

The court has examined petitioner’s petition as required by Rule 4 of the Federal

3

Rules Governing Section 2254 Cases. It does not plainly appear from the petition and any

4

attached exhibits that petitioner is not entitled to relief. See id. Respondent(s), therefore, will be

5

directed to file a response to petitioner’s petition. See id. If an answer to the petition is filed,

6

such answer must comply with Rule 5 of the Federal Rules Governing Section 2254 Cases.

7

Specifically, an answer shall be accompanied by any and all transcripts or other documents

8

relevant to the determination of the issue(s) presented in the petition. See id. Failure to file a

9

response within the time permitted by this order may result in the imposition of appropriate

10

sanctions. See Local Rule 110.

11

Accordingly, IT IS HEREBY ORDERED that:

12

1.

Petitioner’s motion for leave to proceed in forma pauperis (Doc. 8) is

2.

Petitioner’s motion for appointment of counsel (Doc. 3) is denied without

13

granted;

14
15

prejudice to renewal, at the earliest, after a response to the petition has been filed.

16
17

3.

from the date of service of this order;

18
19

Respondent(s) shall file a response to petitioner’s petition within 60 days

4.

Concurrent with the response to the petition, respondent(s) shall also file a

response to petitioner’s motion for a stay-and-abeyance order (Doc. 2);

20

5.

Petitioner’s traverse or reply (if an answer to the petition is filed), if any,

21

or opposition or statement of non-opposition (if a motion in response to the petition is filed) shall

22

be filed and served within 30 days of service of respondent’s response; and

23

///

24

///

25

///

26

///
2

1

6.

The Clerk of the Court shall serve a copy of this order, together with a

2

copy of petitioner’s petition for a writ of habeas corpus and the court’s Order re: Consent or

3

Request for Reassignment on Michael Patrick Farrell, Senior Assistant Attorney General.

4
5
6
7

DATED: October 9, 2012
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
3