Martinez v. Director of CDCR

Filing 11

ORDER signed by Magistrate Judge Dale A. Drozd on 12/7/2012 GRANTING petitioner's 6 motion to proceed IFP ; DIRECTING respondent to file a response to petitioner's 9/4/2012 motion for stay and abeyance within 28 days, petitioner's r eply, if any, shall be filed and served within 14 days thereafter; DENYING, without prejudice, petitioner's 3 motion for appointment of counsel; the Clerk shall serve a copy of this order, the form Consent to Proceed Before a US Magistrate Judge, a copy of the habeas petition, and a copy of the motion for stay and abeyance on Michael Farrell. (cc: Michael Farrell) (Yin, K)

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10

DEREK MARTINEZ,

11
12
13

Petitioner,

No. 2:12-cv-2273 DAD P

vs.
DIRECTOR OF CDCR,

14

Respondent.

15

ORDER
/

16

Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of

17

habeas corpus pursuant to 28 U.S.C. § 2254, together with an application to proceed in forma

18

pauperis, a motion for appointment of counsel (Doc. No. 3) and a motion for stay and abeyance

19

(Doc. No. 4).

20

Examination of the in forma pauperis application reveals that petitioner is unable

21

to afford the costs of suit. Accordingly, the application to proceed in forma pauperis will be

22

granted. See 28 U.S.C. § 1915(a).

23

Since petitioner may be entitled to relief if the claimed violation of constitutional

24

rights is proved, respondent will, by subsequent order, be directed to file a response to

25

petitioner’s habeas petition. First, however, respondent will be directed to respond to petitioner’s

26

motion for stay and abeyance.
1

1

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

2

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

3

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

4

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

5

not find that the interests of justice would be served by the appointment of counsel at the present

6

time. Accordingly, petitioner’s motion for appointment of counsel will be denied without

7

prejudice.

8

In accordance with the above, IT IS HEREBY ORDERED that:

9

1. Petitioner’s motion to proceed in forma pauperis (Doc. No. 6) is granted.

10

2. Respondent is directed to file a response to petitioner’s September 4, 2012

11

motion for stay and abeyance (Doc. No. 4) within twenty-eight days from the date of this order.

12

Petitioner’s reply, if any, shall be filed and served within fourteen days thereafter.

13
14

3. Petitioner’s September 4, 2012 motion for appointment of counsel (Doc. No.
3) is denied without prejudice.

15

4. The Clerk of the Court shall serve a copy of this order, the form Consent to

16

Proceed Before a United States Magistrate Judge, a copy of the petition for writ of habeas corpus

17

pursuant to 28 U.S.C. § 2254, and a copy of the motion for stay and abeyance on Michael Patrick

18

Farrell, Senior Assistant Attorney General.

19

DATED: December 7, 2012.

20
21
22
23
24

DAD:12
mart12cv2273.o

25
26
2