Herrera v. Gipson

Filing 24

ORDER signed by Magistrate Judge Dale A. Drozd on 7/10/14 ORDERING that Petitioners motion for entry of default (Doc. No. 23 ) is DENIED; Petitioners motion for appointment of counsel (Doc. No. 23 ) is DENIED; and Petitioners motion for an evidentiary hearing (Doc. No. 23 ) is DENIED.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ROBERTO HERRERA,

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No. 2:12-cv-2982 TLN DAD P

Petitioner,
v.

ORDER

CONNIE GIPSON,

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Respondents.

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Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas

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corpus pursuant to 28 U.S.C. § 2254. Pending before the court is petitioner’s motion for entry of

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default.

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By way of background, on April 22, 2014, the court ordered respondent to file a

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responsive pleading to petitioner’s application for writ of habeas corpus. In accordance with the

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court’s order, counsel for respondent timely filed a motion to dismiss. Petitioner’s motion for

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entry of default based on respondent’s failure to timely file a responsive pleading is therefore

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without merit. Moreover, petitioner is advised that failure of respondent to timely file a response

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to the claims in a habeas petition does not entitle petitioner to default judgment. See Gordon v.

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Duran, 895 F.2d 610, 612 (9th Cir. 1990).

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In his motion, petitioner also requests appointment of counsel on his behalf and an
evidentiary hearing. As to his motion for appointment of counsel, there currently exists no
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absolute right to appointment of counsel in habeas proceedings. See Nevius v. Sumner, 105 F.3d

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453, 460 (9th Cir. 1996). However, 18 U.S.C. § 3006A authorizes the appointment of counsel at

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

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2254 Cases. In this case, the court does not find that the interests of justice would be served by

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the appointment of counsel at the present time. As to petitioner’s motion for an evidentiary

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hearing, petitioner has not explained why an evidentiary hearing is warranted in this case. See

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Rule 8(a), Fed. R. Governing § 2254 Cases. At this time, the court finds that ordering an

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evidentiary hearing would be premature.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Petitioner’s motion for entry of default (Doc. No. 23) is denied;

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2. Petitioner’s motion for appointment of counsel (Doc. No. 23) is denied; and

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3. Petitioner’s motion for an evidentiary hearing (Doc. No. 23) is denied.

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Dated: July 10, 2014

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DAD:9
herr2982.def

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