Holsey v. Knipp

Filing 11

ORDER signed by Magistrate Judge Gregory G. Hollows on 7/15/13 ORDERING that 6 FINDINGS AND RECOMMENDATIONS are VACATED; The Federal Defender is appointed to represent petitioner; The Clerk of the Court is directed to serve a copy of the petit ion and this order on David Porter, Assistant Federal Defender. Within thirty days of this order, the parties shall file a joint scheduling statement. Clerk of the Court shall serve a copy of this order, the consent/reassignment form contemplated by Appendix A(k) to the Local Rules of this court together with a copy of the petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on Michael Patrick Farrell, Senior Assistant Attorney General. (cc Michael Farrell)(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LEROY DALE HOLSEY,

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Plaintiff,

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No. 2:13-cv-0962 GGH P

v.

ORDER

WILLIAM KNIPP,

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Defendants.

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Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for a

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writ of habeas corpus pursuant to 28 U.S.C. § 2254.
In light of the complexity of the legal issues involved and the length of petitioner’s

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sentence, the court has determined that the interests of justice require appointment of counsel.

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See 18 U.S.C. § 3006A(a)(2)(B); see also Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983).
Petitioner has filed a request to dismiss his case, followed by a request for permission to

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exhaust state court remedies. (Doc. Nos. 8, 9.) In light of the appointment, the undersigned will

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vacate the findings and recommendations issued June 18, 2013, which had recommended

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dismissal for failure to exhaust, and petitioner will be given the opportunity to exhaust in

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accordance with the directives outlined below.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The findings and recommendations issued June 18, 2013 are vacated;1

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2. The Federal Defender is appointed to represent petitioner;

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3. The Clerk of the Court is directed to serve a copy of the petition and this order on

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David Porter, Assistant Federal Defender.

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4. Within thirty days of this order, the parties shall file a joint scheduling statement which
addresses the timing and order of the following matters:
a. The number of days petitioner’s counsel estimates it will take to file either:

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1. A statement indicating petitioner will stand on the existing petition, and
supplemental memorandum of points and authorities, if any;

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2. An amended petition which will proceed on exhausted claims only; or

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3. An amended petition which identifies both exhausted and unexhausted

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claims, demonstrates good cause for having failed to exhaust state court remedies as to any

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claims,2 and any intention to pursue unexhausted claims, after which the court may recommend

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that the proceedings be held in abeyance while petitioner exhausts any new claims in state court.

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b. Discovery and investigations;

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c. Anticipated motions;

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d. The need for and timing of an evidentiary hearing;

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e. Enumeration and resolution of unexhausted claims; and

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f. Possible future amendments to the pleadings.

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Counsel are reminded of the importance of timely filing a joint scheduling statement. Failure to

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do so may result in sanctions.

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5. The Clerk of the Court shall serve a copy of this order, the consent/reassignment form

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contemplated by Appendix A(k) to the Local Rules of this court together with a copy of the

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The order portion of the June 18, 2013 opinion is not affected by this order.
Rhines v. Weber, 544 U.S. 269, 125 S. Ct. 1528 (2005).
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petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on Michael Patrick Farrell,

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Senior Assistant Attorney General.

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Dated: July 15, 2013

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/s/ Gregory G. Hollows

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UNITED STATES MAGISTRATE JUDGE
110a.ggh

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