Floyd v. Fox

Filing 19

ORDER signed by Magistrate Judge Kendall J. Newman on 3/24/2017 GRANTING petitioner's 18 motion for appointment of counsel. The order to show cause 17 is DISCHARGED. The Federal Defender is APPOINTED to represent petitioner. The Clerk shal l serve a copy of this order on the Federal Defender, Attention: Habeas Appointment. Petitioner's counsel shall contact the Clerk's office to make arrangements for copies of documents in the file. Within 60 days, petitioner's counsel shall respond to the pending 14 motion to disiss. (cc: FD, Habeas Appointment)(Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JAMES FLOYD,

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No. 2:16-cv-1778 KJN P
Petitioner,

v.

ORDER

ROBERT W. FOX, Warden,
Respondent.

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Petitioner is a state prisoner, proceeding pro se and in forma pauperis, with an application

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for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Both parties consented to proceed before

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the undersigned for all purposes. See 28 U.S.C. § 636(c). Petitioner challenges his 2014

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conviction for residential burglary and contempt of court for violating a protective order. The

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trial court also found that petitioner sustained a prior strike conviction under California’s three

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strikes law. Petitioner was sentenced to thirteen years in state prison.

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Petitioner has submitted evidence that he suffers from psychosis, dementia, PTSD, and

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cognitive deficits that preclude him from representing himself in this action, and the inmate

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previously assisting him has paroled. (ECF Nos. 8, 18.) The court has determined that the

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interests of justice require appointment of counsel. See 18 U.S.C. § 3006A(a)(2)(B); see also

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Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983).

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On December 30, 2016, respondent filed a motion to dismiss on the grounds that the

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petition is a mixed petition, arguing that petitioner should be allowed to amend the petition to

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delete the three unexhausted claims. On February 10, 2017, petitioner was ordered to show cause

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why the motion should not be granted. In light of the appointment of counsel, the order to show

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cause is discharged, and petitioner is granted sixty days in which to respond to the motion to

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dismiss. Petitioner is advised that failure to timely file respond may result in sanctions.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Petitioner’s motion for appointment of counsel (ECF No. 18) is granted.

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2. The order to show cause (ECF No. 17) is discharged.

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3. The Federal Defender is appointed to represent petitioner.

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4. The Clerk of the Court shall serve a copy of this order on the Federal Defender,

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Attention: Habeas Appointment.
5. Petitioner’s counsel shall contact the Clerk’s Office to make arrangements for copies of
documents in the file.
6. Within sixty days from the date of this order, petitioner’s counsel shall respond to the

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pending motion to dismiss (ECF No. 14).

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Dated: March 24, 2017

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/floy1778.110a

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