Turner v. Richardson et al

Filing 20

ORDER signed by Magistrate Judge Allison Claire on 4/23/2013 ORDERING that petitioner's 2 motion to proceed IFP is GRANTED; petitioner's 13 motion for appointment of counsel is GRANTED; the Federal Defender is APPOINTED to represent petitioner; the Clerk shall serve a copy of the petition filed in this action on 2/28/2013, a copy of the 7/21/11 document docketed as a First Amended Petition in case no. 2:10-cv-3424 DAD, and this order on David Porter; petitioner's counsel sh all contact the Clerk's office for copies of documents in this file and in case no. 2:10-cv-3424 DAD; petitioner's petition is DISMISSED with leave to amend within 60 days; petitioner's 7 motion to proceed IFP is DENIED as moot; pe titioner's 8 motion for an order to show cause is DENIED without prejudice; petitioner's 15 motion for an order to show cause is DENIED without prejudice; petitioner's 18 motion to expedite review is DENIED; and petitioner's 19 motion for default judgment is DENIED. (cc: AC, David Porter)(Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ANTHONY RECARDO G. TURNER,

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Petitioner,

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No. 2:13-cv-0454 WBS JFM P

vs.
PAUL RICHARDSON, et al.,

ORDER

Respondents.

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

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

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pauperis.

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

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

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granted. See 28 U.S.C. § 1915(a).
Petitioner filed this action on or about February 19, 2013.1 He challenges a 2010

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conviction entered in the Yolo County Superior Court and the eighteen year sentence imposed

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See Houston v. Lack, 487 U.S. 266, 276 (1988).
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thereon. Court records reflect that petitioner previously filed a federal habeas corpus action

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challenging the same conviction, Case No. 2:10-cv-3424 DAD.2 That action was dismissed

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without prejudice on April 27, 2011 due to petitioner’s failure to file a second amended petition.

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Subsequently, on July 21, 2011, petitioner filed an amended petition in that action. He was

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notified that the case had been closed and that the court would not issue any orders in response to

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the filing of that petition. See ECF No. 20 in Case No. 2:10-cv-3424 DAD.

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Petitioner has raised in the petition at bar one or more cognizable claims for

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violation of his constitutional rights. After review of the record in this action and in Case No.

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2:10-cv-3424 DAD, it appears that complex questions concerning a possible statute of

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limitations bar may be presented. In light of the complexity of the legal issues involved, the

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court has determined that the interests of justice require appointment of counsel. See 18 U.S.C.

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§ 3006A(a)(2)(B); see also Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Accordingly,

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the court will appoint the Federal Defender to represent petitioner.

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Since petitioner has filed two separate petitions challenging the instant

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conviction, and good cause appearing, the petition filed in this action will be dismissed and the

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Federal Defender will be granted sixty days in which to file an amended petition. The court will

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make subsequent orders for proceedings in this action following the filing of the amended

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petition. All of petitioner’s outstanding motions will be denied without prejudice.

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

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1. Petitioner’s February 28, 2013 motion to proceed in forma pauperis (ECF No.

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2) is granted;

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2. Petitioner’s March 21, 2013 motion for appointment of counsel (ECF No. 13)
is granted;
3. The Federal Defender is appointed to represent petitioner.

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A court may take judicial notice of court records. See MGIC Indem. Co. v. Weisman,
803 F.2d 500, 505 (9th Cir. 1986); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980).
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4. The Clerk of the Court is directed to serve a copy of the petition filed in this

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action on February 28, 2013 (ECF No. 1), a copy of the document docketed on July 21, 2011 as a

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First Amended Petition (ECF No. 20) in Case No. 2:10-cv-3424 DAD, and this order on David

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Porter, Assistant Federal Defender.

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5. Petitioner’s counsel shall contact the Clerk’s Office to make arrangements for
copies of documents in this file and in Case No. 2:10-cv-3424 DAD.

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6. Petitioner’s petition is dismissed with leave to file an amended petition within
sixty days.

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7. Petitioner’s March 14, 2013 motion to proceed in forma pauperis (ECF No. 7)
is denied as moot;

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8. Petitioner’s March 14, 2013 motion for an order to show cause (ECF No. 8) is
denied without prejudice;

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9. Petitioner’ March 27, 2013 motion for an order to show cause (ECF No. 15) is
denied without prejudice;

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10. Petitioner’s April 4, 2013 motion to expedite review (ECF No. 18) is denied;
and

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11. Petitioner’s April 10, 2013 motion for default judgment (ECF No. 19) is

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denied.

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DATED: April 23, 2013.

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ALLISON CLAIRE
UNITED STATES MAGISTRATE JUDGE

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turn0454.110a

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