Rodriguez v. Lizzaraga

Filing 61

ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Deborah Barnes on 5/17/2018 DENYING petitioner's 57 motion for the appointment of counsel and RECOMMENDING petitioner's 46 request to extend the stay. Referred to Judge John A. Mendez; Objections to F&R due within 14 days. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RICHARD C. RODRIGUEZ,

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Petitioner,

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v.

No. 2:15-cv-1154 JAM DB P

ORDER AND FINDINGS AND
RECOMMENDATIONS

JOE LIZARRAGA,

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Respondent.

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Petitioner is a state prisoner proceeding pro se with an application for a writ of habeas

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corpus pursuant to 28 U.S.C. § 2254. Petitioner has requested the court extend the stay (ECF No.

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46) and requested the appointment of counsel (ECF No. 57). For the reasons set forth below the

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court will deny petitioner’s request for counsel and recommend the request for stay be denied.

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I.

Motion to Appoint Counsel
Petitioner has requested the appointment of counsel. Petitioner argues that he is not

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equipped to present this claim with accurate reliability, a number of his claims would benefit

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from clarification provided by an attorney, his limited knowledge of procedures and law, and the

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limitations inherent in a prison law library warrant the appointment of counsel.

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

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

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authorizes the appointment of counsel at any stage of the case “if the interests of justice so
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require.” See Rule 8(c), Fed. R. Governing § 2254 Cases. Petitioner has shown that he is able to

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follow directives from the court and present his claims coherently. In the present case, the court

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does not find that the interests of justice would be served by the appointment of counsel at the

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present time.

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II.

Request to Extend Stay

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Petitioner has requested that the court extend the stay so that he can exhaust his

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unexhausted claims. (ECF No. 46.) The court previously filed findings and recommendations

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recommending that petitioner’s request to impose a Rhines1 stay in this action be denied. (ECF

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No. 44.) The district judge assigned to the case adopted the findings and recommendations,

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dismissed claims 10 through 14, and denied as moot petitioners motions to extend the stay (ECF

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Nos. 42, 43). (ECF No. 47.) Accordingly, the court will recommend that petitioner’s third

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request to extend the stay be denied as moot.

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Accordingly, IT IS HEREBY ORDERED that petitioner’s motion for appointment of

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counsel (ECF No. 57) is denied without prejudice to a renewal of the motion at a later stage of the

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proceedings.
IT IS HEREBY RECOMMENDED that petitioner’s request to extend the stay (ECF No.

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46) be denied as moot.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days

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after being served with these findings and recommendations, petitioner may file written

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objections with the court. Such a document should be captioned “Objections to Magistrate

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Judge’s Findings and Recommendations.”

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Rhines v. Weber, 544 U.S. 269 (2005).
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Petitioner is advised that failure to file objections within the specified time may waive the

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right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: May 17, 2018

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DLB:12
DLB:1/Orders/Priosner.Habeas/rodr1154.stay.110+111

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