Androshchuk v. Biter

Filing 55

ORDER signed by Magistrate Judge Allison Claire on 03/06/18 DENYING 47 Motion to Proceed IFP because he has a motion for in forma pauperis status pending in the Ninth Circuit. Petitioner's motion for appointment of counsel 54 is DENIED. Pe titioner's request to put his case on hold is construed as a motion for an extension of time 54 and is GRANTED. Petitioner is granted 14 days from the service of this order in which to reply to respondent's opposition to his motion for an extension of time to file a notice of appeal. (Plummer, M)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 12 EDUARD VLADIMIROV ANDROSHCHUK, Petitioner, 13 14 15 16 No. 2:15-cv-1204 MCE AC P ORDER v. M. ELIOT SPEARMAN, Respondent. 17 18 19 Petitioner has requested to proceed in forma pauperis. ECF No. 47. He has also requested appointment of counsel and an extension of time. EFC No. 54. 20 Petitioner’s in forma pauperis request is captioned for the Ninth Circuit Court of Appeals 21 (see EFC No. 47) and a review of the Ninth Circuit’s docket for his appeal shows that the request 22 was also filed in that court. Accordingly, petitioner’s request to proceed in forma pauperis on 23 appeal will be denied because he currently has a motion pending in the Ninth Circuit. 24 Petitioner has also requested appointment of counsel. There currently exists no absolute 25 right to appointment of counsel in habeas proceedings. Nevius v. Sumner, 105 F.3d 453, 460 (9th 26 Cir. 1996). However, 18 U.S.C. § 3006A(a)(2) authorizes the appointment of counsel at any 27 stage of the case if “the interests of justice so require.” In the present case, petitioner requests 28 appointment of counsel to assist him in replying in support of his motion for an extension of time 1 to file a notice of appeal and to put his case on hold until he obtains counsel. EFC No. 54. The 2 court does not find that the interests of justice would be served by the appointment of counsel at 3 the present time and the motion will be denied. Further, the court will not put petitioner’s case on 4 an indefinite “hold” until he obtains counsel and the request to put a hold on this case will be 5 construed as a request for an extension of time. EFC No. 54. The court will grant petitioner a 6 fourteen-day extension of time to file a reply to respondent’s opposition to his motion for an 7 extension of time to file a notice of appeal (EFC No. 50). Petitioner is reminded that he needs to 8 respond to respondent’s opposition (ECF No. 50), not to the court order filed on January 30, 2018 9 (EFC No. 52). 10 Accordingly, IT IS HEREBY ORDERED that: 11 1. Petitioner’s motion to proceed in forma pauperis (EFC No. 47) is denied because he 12 has a motion for in forma pauperis status pending in the Ninth Circuit; 13 2. Petitioner’s motion for appointment of counsel (EFC No. 54) is denied; 14 3. Petitioner’s request to put his case on hold is construed as a motion for an extension of 15 16 time (EFC No. 54) and is granted; and 4. Petitioner is granted fourteen days from the service of this order in which to reply to 17 respondent’s opposition to his motion for an extension of time to file a notice of appeal. 18 DATED: March 6, 2018 19 20 21 22 23 24 25 26 27 28 2

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