Green v. Lizaraga

Filing 21

ORDER signed by Magistrate Judge Kendall J. Newman on 5/1/2018 ORDERING petitioner's 19 motion for certificate of appealability is CONSTRUED as notice of appeal; the Clerk shall process petitioner's appeal; and petitioner's 20 request for appointment of counsel is DENIED without prejudice. (Yin, K)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

VENCIL C. GREEN,

No. 2:16-cv-2090 MCE KJN P

Petitioner,

12
13

v.

14

ORDER

J. LIZARAGA,
Respondent.

15
16
17

Petitioner is a state prisoner, proceeding without counsel. On March 15, 2018, this action

18

was summarily dismissed. On March 20, 2018, under the mailbox rule,1 petitioner filed a motion

19

for certificate of appealability and a motion to appoint counsel in the Court of Appeals for the

20

Ninth Circuit. Because petitioner had not filed an appeal, the motions were transferred to this

21

court.
The district court previously declined to issue a certificate of appealability. (ECF No. 17.)

22
23

Good cause appearing, the undersigned construes petitioner’s motion for certificate of

24

appealability as a notice of appeal. The Clerk of the Court is directed to process petitioner’s

25

appeal.

26

////

27

1

28

See Campbell v. Henry, 614 F.3d 1056, 1059 (9th Cir. 2010) (under the mailbox rule, the
petition is deemed filed when handed to prison authorities for mailing, and applies to both state
and federal filings by incarcerated parties).

1

Petitioner has requested the appointment of counsel. There currently exists no absolute

2

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

3

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

4

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

5

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

6

appointment of counsel. Petitioner’s request is denied without prejudice to renewal in the Ninth

7

Circuit once petitioner’s appeal is processed.

8

Accordingly, IT IS HEREBY ORDERED that:

9

1. Petitioner’s motion for certificate of appealability (ECF No. 19) is construed as a

10

notice of appeal;

11

2. The Clerk of the Court is directed to process petitioner’s appeal; and

12

3. Petitioner’s request for appointment of counsel (ECF No. 20) is denied without

13

prejudice.

14

Dated: May 1, 2018

15
16
gree2090.110

17
18
19
20
21
22
23
24
25
26
27
28
2