In re Armando E. Herrera

Filing 14

ORDER signed by Magistrate Judge Allison Claire on 2/2/15 ORDERING that the letter filed on October 27, 2014, ECF No. 1 , is construed as a petition for writ of habeas corpus. The Clerk of the Court is directed to amend the docket accordingly; Pet itioners application for writ of habeas corpus is dismissed with leave to amend within thirty days from the date of this order; Petitioners motion for extension, ECF. No. 6, is denied as moot; Petitioners November 14, 2014 request for appointmen t of counsel 6 is denied without prejudice to a renewal of the motion at a later stage of the proceedings; Petitioners motion to proceed in forma pauperis, 9 , is granted; and The Clerk of the Court is directed to send petitioner the courts form for filing a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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No. 2:14-cv-02939 AC P

In re
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ARMANDO E. HERRERA,
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Petitioner.

ORDER

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On October 27, 2014, petitioner, a state prisoner at California Health Care Facility, filed a

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pro se letter in the United States District Court for the Northern District of California in which he

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appears to allege due process violations related to his parole board hearings. ECF. No. 1. The

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same day, the Clerk for the Northern District sent petitioner a blank form for filing a petition for

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writ of habeas corpus and notified petitioner that he was required to submit a completed petition

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within twenty-eight days or his action would be dismissed. ECF. No. 2. On November 14, 2014,

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petitioner filed a request for an extension of time and appointment of counsel. ECF. No. 6. The

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request appears to seek an extension of the twenty-eight day deadline set by the Clerk. Petitioner

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then filed a motion for leave to proceed in forma pauperis that included a certified prisoner trust

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account statement. ECF. Nos. 9, 11. On December 17, 2014, the Northern District ordered this

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case transferred to the Eastern District of California. ECF. No. 12.

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This court has reviewed petitioner’s letter and construes it as a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254. Petitioner has failed to specify the grounds for relief, see
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Rule 2(a), Rules Governing § 2254 Cases, or address the exhaustion of his state court remedies in

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his petition, 28 U.S.C. § 2254(b)(1). Petitioner’s application for writ of habeas corpus is

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dismissed with leave to file an amended petition thirty days from the date of this order and

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petitioner’s motion for extension of time, ECF. No. 6, is denied as moot. The Clerk will be

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directed to send petitioner a copy of this court’s form for filing a petition for writ of habeas

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corpus pursuant to 28 U.S.C. § 2254.

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In his motion for extension of time, petitioner also requests the appointment of counsel.

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

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Nevius v. Sumner, 105 F.3d 453, 460 (9th Cir. 1996). However, 18 U.S.C. § 3006A authorizes

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the appointment of counsel at any stage of the case “if the interests of justice so require.” See

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Rule 8(c), Fed. R. Governing § 2254 Cases. In the present case, the court does not find that the

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interests of justice would be served by the appointment of counsel at the present time.

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Examination of the motion for leave to proceed in forma pauperis and certified trust

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statement reveals petitioner is unable to afford the costs of this action. Accordingly, leave to

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proceed in forma pauperis is granted. 28 U.S.C. § 1915(a).

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

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1. The letter filed on October 27, 2014, ECF No. 1, is construed as a petition for writ of

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habeas corpus. The Clerk of the Court is directed to amend the docket accordingly;

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2. Petitioner’s application for writ of habeas corpus is dismissed with leave to amend
within thirty days from the date of this order; 1

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3. Any amended petition must bear the case number assigned to this action and the title
“Amended Petition”;

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4. Petitioner’s motion for extension, ECF. No. 6, is denied as moot;

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5. Petitioner’s November 14, 2014 request for appointment of counsel, ECF. No. 6, is

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

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6. Petitioner’s motion to proceed in forma pauperis, ECF. No. 9, is granted; and
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By setting this deadline the court is making no finding or representation that the petition is not
subject to dismissal as untimely.
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7. The Clerk of the Court is directed to send petitioner the court’s form for filing a

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petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

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DATED: February 2, 2015

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