DeAnda v. Unknown

Filing 3

ORDER signed by Magistrate Judge Gregory G. Hollows on 12/12/16 ORDERING that Petitioner's letter (ECF No. 1 ) is DENIED without prejudice; Petitioner is granted 30 days from the date of service of this order to file a petition that compli es with the requirements. Clerk of the Court is directed to send petitioner the court's form for filing a petition for writ of habeas corpus, and the application to proceed in forma pauperis by a prisoner; and petitioner's motion for appointment of counsel (ECF No. 1 ) is DENIED without prejudice to a renewal of the motion at a later stage of the proceedings.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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S. DEANDA,

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No. 2:16-cv-2755 GGH P
Petitioner,

v.

ORDER

UNKNOWN,
Respondent.

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Petitioner, a state prisoner at High Desert State Prison, has filed a document styled as a

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letter seeking to preserve his time limit to contest his sentence. No other pleadings have been

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filed by the petitioner. In order to commence an action, petitioner must file a petition for writ of

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habeas corpus as required by Rule 3 of the Rules Governing Section 2254 cases, and petitioner

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must either pay the required filing fee or file an application requesting leave to proceed in forma

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pauperis. See 28 U.S.C. §§ 1914(a), 1915(a). The court will not issue any orders granting or

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denying relief until an action has been properly commenced. Therefore, petitioner’s motion will

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be denied without prejudice. See McDade v. Warden, 2010 WL 4795377 (C.D. Cal. 2010); Soto

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v.Warden, 2009 WL 1705471 (C.D. Cal. 2009). Petitioner will be provided the opportunity to

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file his petition, and to submit an application requesting leave to proceed in forma pauperis or to

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submit the appropriate filing fee.

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In addition, petitioner has requested the appointment of counsel. There currently exists no
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absolute right to appointment of counsel in habeas proceedings. See Nevius v. Sumner, 105 F.3d

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453, 460 (9th Cir. 1996). However, 18 U.S.C. § 3006A authorizes the appointment of counsel at

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

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2254 Cases. In the present case, the court does not find that the interests of justice would be

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served by the appointment of counsel at the present time.

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

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1. Petitioner’s letter (ECF No. 1) is denied without prejudice;

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2. Petitioner is granted thirty days from the date of service of this order to file a petition

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that complies with the requirements of the Rules Governing Section 2254 Cases, the Federal

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Rules of Civil Procedure, and the Local Rules of Practice; the petition must bear the docket

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number assigned this case; petitioner must file an original and two copies of the petition.

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Petitioner shall also submit, within thirty days from the date of this order, the application to

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proceed in forma pauperis on the form provided by the Clerk of Court, or the filing fee in the

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amount of $5.00. Petitioner’s failure to comply with this order will result in a recommendation

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that this matter be dismissed;

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3. 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, and the application to proceed in forma pauperis by a prisoner;

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and

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4. Petitioner’s motion for appointment of counsel (ECF No. 1) is denied without

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prejudice to a renewal of the motion at a later stage of the proceedings.

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Dated: December 12, 2016

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/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE

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/mp

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dean2755.nopetition+110 order

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