Sermeno v. Spearman

Filing 38

ORDER signed by Magistrate Judge Deborah Barnes on 03/30/17 ordering Petitioners motion to appoint counsel 32 is denied. Petitioners motion for leave to supplement the petition 36 is granted. Petitioner shall, within 14 days of this order, file a second amended petition as a separate entry in this case. Petitioners motion for expeditious review 34 , 37 are denied as moot. Petitioners motion for reconsideration 23 is denied as moot. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LARRY ALTAMIRANO SERMENO,

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No. 2:14-cv-02729 DB P

Petitioner,
v.

ORDER

M.E. SPEARMAN,
Respondent.

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

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pursuant to 28 U.S.C. § 2254. (ECF No. 1.) Petitioner is now proceeding on his first amended

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petition. (ECF No. 9.)

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Petitioner filed his initial petition on November 20, 2014. (ECF No. 1.) On August 17,

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2015, then-Magistrate Judge Dale A. Drozd entered an order dismissing the petition for failure to

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exhaust all claims in state court. (ECF No. 8.) However, the court afforded petitioner the

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opportunity to file an amended petition along with a motion for stay and abeyance pursuant to

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Rhines v. Weber, 544 U.S. 269, 273 (2005). Petitioner then timely filed the first amended

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petition (ECF No. 9) and motion for stay and abeyance (ECF No. 12). On August 2, 2016, the

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case was reassigned to the undersigned. (ECF No. 16.) On November 23, 2016, the undersigned

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entered an order requiring petitioner to file a statement explaining whether he had exhausted all

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six claims raised in the first amended petition by raising them and receiving a ruling from the
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California Supreme Court. (ECF No. 19.) Petitioner timely filed a statement on the record

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affirming that all six claims were exhausted in state court. (ECF No. 21.) Thereafter, the court

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entered an order denying petitioner’s motion to stay as moot and noting that the court would

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address the screening of the first amended petition and petitioner’s motion for reconsideration

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(ECF No. 23) by separate order. (ECF No. 29.)

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Since that order, petitioner has filed several motions: (1) a motion to appoint counsel

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(ECF No. 32); (2) two motions for expeditious review of plaintiff’s first amended petition (ECF

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Nos. 34; 37); and (3) a motion for leave to supplement the first amended petition (ECF No. 36).

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The court will address each of these motions below.

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I.

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Motion to Appoint Counsel
Petitioner has requested the appointment of counsel. There currently exists no absolute

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right to appointment of counsel in habeas proceedings. See Nevius v. Sumner, 105 F.3d 453, 460

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

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of the case “if the interests of justice so require.” See Rule 8(c), Fed. R. Governing § 2254 Cases.

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In the present case, the court does not find that the interests of justice would be served by the

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appointment of counsel at the present time.
Accordingly, petitioner’s request for appointment of counsel (ECF No. 32) is denied

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without prejudice to a renewal of the motion at a later stage of the proceedings.

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II.

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Motion for Leave to Supplement
Under 28 U.S.C. § 2242, an application for a writ of habeas corpus “may be amended or

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supplemented as provided in the rules of procedure applicable to civil actions.” See also Rule 12

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of the Rules Governing § 2254 Cases (recognizing general applicability in habeas of rules of civil

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procedure). Petitioner’s motion is governed by Federal Rule of Civil Procedure 15(a)(1), which

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permits an amended pleading as a matter of course within 21 days after serving it.

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The petition in this case has not yet been served on respondent and so plaintiff may still

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amend once as a matter of course. Accordingly, the undersigned grants petitioner’s motion to

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supplement. Petitioner shall, within 14 days of this order, file a second amended petition as a

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separate docket entry in this case. The court will thereafter screen the second amended petition.
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III.

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Motions for Expeditious Review
Plaintiff filed two motions for expeditious review of his first amended petition. (ECF

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Nos. 34; 37.) Now that the court is granting petitioner’s motion to supplement his petition, these

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motions are moot. Accordingly, the motions will be denied as moot.

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IV.

Motion for Reconsideration
Additionally, plaintiff’s motion for reconsideration (ECF No. 23) also concerns the first

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amended petition and includes a request to expedite review of the first amended petition.

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Because the court is granting plaintiff’s motion to supplement the petition, this motion, too, is

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now moot and will be denied without prejudice. If, after filing a second amended petition,

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petitioner still believes that the court needs to address his requests for relief in the motion for

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reconsideration, plaintiff may refile the motion at that time.

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V.

Conclusion

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For the foregoing reasons, IT IS HEREBY ORDERED that:

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(1)

Petitioner’s motion to appoint counsel (ECF No. 32) is denied;

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(2)

Petitioner’s motion for leave to supplement the petition (ECF No. 36) is granted;

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(3)

Petitioner shall, within 14 days of this order, file a second amended petition as a

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separate entry in this case;
(4)

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Petitioner’s motion for expeditious review (ECF Nos. 34; 37) are denied as moot;

(5)

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Petitioner’s motion for reconsideration (ECF No. 23) is denied as moot.

and

Dated: March 30, 2017

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DB / ORDERS / ORDERS.PRISONER.HABEAS / serm2729.mts

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