Morgan v. Ray et al

Filing 7

ORDER signed by Magistrate Judge Kendall J. Newman on 9/28/12 ORDERING that Petitioners request for appointment of counsel 6 is GRANTED; The Federal Defender is appointed to represent petitioner; Petitioners request for an extension of time 6 w ithin which to file an amended petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, is granted; Within 60 days after the filing date of this order, petitioners counsel shall file, and serve on the proper respondent, either: (1) a n amended petition for writ of habeas corpus that contains only exhausted claims; OR (2) an amended petition that identifies both exhausted and unexhausted claims; demonstrates good cause for petitioners failure to previously exhaust unexhausted cl aims, see Rhines v. Weber, 544 U.S. 269 (2005); and requests a stay of these proceedings pending petitioners exhaustion, in the state courts, of his currently unexhausted claims. Clerk of the Court is directed to serve, on David Porter, Assistant Federal Defender, AND Michael Patrick Farrell, Senior Assistant Attorney General, the following: (1) a copy of this order; (2) a copy of the courts order filed September 17, 2012 4 ; (3) a copy of the underlying petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, and exhibits thereto 1 ; and (4) additional copies of the consent/reassignment form. (cc David Porter, Michael Farrell)(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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CHRISTOPHER MORGAN,

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Petitioner,

No. 2:12-cv-02269 KJN P

vs.
JAMES RAY et al.,
Respondents.

ORDER
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Petitioner is a state prisoner proceeding without counsel. By order filed

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September 17, 2012, this court granted petitioner’s request to proceed in forma pauperis, but

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dismissed his petition for writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254, with leave to

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file an amended petition. (Dkt. No. 4.) The court also invited petitioner to request appointment

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of counsel, because petitioner is serving a sentence of life without the possibility of parole. (Id.)

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Petitioner now requests appointment of counsel, and requests an extension of time within which

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to file an amended habeas petition. (Dkt. No. 6.)

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Pursuant to his request for appointment of counsel, petitioner emphasizes that he

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“has no formal law experience nor any knowledge of the law.” (Dkt. No. 6 at 1.) While there is

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no absolute right to appointment of counsel in habeas proceedings, Nevius v. Sumner, 105 F.3d

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453, 460 (9th Cir. 1996), appointment of counsel is authorized for financially eligible prisoners,
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pursuant to Section 3006A, United States Code, tit. 18, “if the interests of justice so require.” 18

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U.S.C. § 3006A(a)(2); see also Rule 8(c), Fed. R. Governing § 2254 Cases. In light of

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petitioner’s sentence, the court finds that the interests of justice require appointment of counsel in

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this proceeding. See 18 U.S.C. § 3006A(a)(2)(B) (applicable to petitions filed pursuant to 28

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U.S.C. § 2254); see also Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983).

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In addition, in order to permit appointed counsel adequate time to review the

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merits of this action and file an amended petition for writ of habeas corpus, the court will grant

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petitioner’s request for an extension of time.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Petitioner’s request for appointment of counsel (Dkt. No. 6), is granted;

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2. The Federal Defender is appointed to represent petitioner;

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3. Petitioner’s request for an extension of time (Dkt. No. 6), within which to file

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an amended petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, is granted;

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4. Within sixty (60) days after the filing date of this order, petitioner’s counsel

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shall file, and serve on the proper respondent, either: (1) an amended petition for writ of habeas

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corpus that contains only exhausted claims; OR (2) an amended petition that identifies both

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exhausted and unexhausted claims; demonstrates good cause for petitioner’s failure to

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previously exhaust unexhausted claims, see Rhines v. Weber, 544 U.S. 269 (2005); and requests

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a stay of these proceedings pending petitioner’s exhaustion, in the state courts, of his currently

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unexhausted claims.

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5. The Clerk of the Court is directed to serve, on David Porter, Assistant

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Federal Defender, AND Michael Patrick Farrell, Senior Assistant Attorney General, the

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following: (1) a copy of this order; (2) a copy of the court’s order filed September 17, 2012 (Dkt.

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No. 4); (3) a copy of the underlying petition for writ of habeas corpus pursuant to 28 U.S.C. §

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2254, and exhibits thereto (Dkt. No. 1); and (4) additional copies of the consent/reassignment

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form contemplated by Appendix A(k) to the Local Rules.

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SO ORDERED.

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DATED: September 28, 2012

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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morg2269.hc.appt.cnsl.

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