Azevedo v. Colusa County

Filing 9

ORDER signed by Magistrate Judge Craig M. Kellison on 5/24/2017 ORDERING petitioner's 4 motion to proceed IFP is GRANTED; petitioner's petition for writ of habeas corpus is DISMISSED with leave to amend; petitioner's 8 "Summons Motion " is DENIED; petitioner's 5 motion for appointment of counsel is DENIED without prejudice; and the Clerk shall send petitioner the court's form habeas corpus application. (Yin, K)

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ALEX LEONARD AZEVEDO, 12 13 14 15 16 17 18 No. 2:17-CV-0457-CMK-P Petitioner, vs. ORDER COLUSA COUNTY, Respondent. / Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. 19 Petitioner seeks leave to proceed in forma pauperis (Doc. 4). Petitioner has 20 submitted the affidavit required by 28 U.S.C. § 1915(a) showing that petitioner is unable to 21 prepay fees and costs or give security therefor. The request will be granted. 22 Pending before the court is petitioner’s petition (Doc. 1). “A petitioner for habeas 23 corpus relief must name the state officer having custody of him or her as the respondent to the 24 petition.” Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994); see also Rule 25 2(a), Federal Rules Governing Section 2254 Cases. Because petitioner has not named the 26 appropriate state officer, petitioner will be provided leave to amend to correct this technical 1 1 defect by naming the correct respondent. See Stanley, 21 F.3d at 360. Petitioner is warned that 2 failure to comply with this order may result in the dismissal of this action. See Local Rule 110. 3 Petitioner has filed a document entitled “Summons Motion,” in which he appears 4 to seek an order directing service of his petition. Because, as discussed above, petitioner has 5 failed to name the correct respondent, this request will be denied at this time. Upon filing of a 6 petitioner naming the correct respondent and stating cognizable claims, the court will direct 7 service on the appropriate agency. 8 Finally, petitioner seeks the appointment of counsel (Doc. 5). There currently 9 exists no absolute right to appointment of counsel in habeas proceedings. See Nevius v. Sumner, 10 105 F.3d 453, 460 (9th Cir. 1996). However, 18 U.S.C. § 3006A authorizes the appointment of 11 counsel at any stage of the case “if the interests of justice so require.” See Rule 8(c), Fed. R. 12 Governing § 2254 Cases. In the present case, the court does not find that the interests of justice 13 would be served by the appointment of counsel at the present time. 14 Accordingly, IT IS HEREBY ORDERED that: 15 1. Petitioner’s motion for leave to proceed in forma pauperis (Doc. 4) is 2. Petitioner’s petition for writ of habeas corpus (Doc. 1) is dismissed with 16 granted; 17 18 leave to amend; 19 3. Petitioner’s “Summons Motion” (Doc. 8) is denied; 20 4. Petitioner shall file an amended petition on the form employed by this 21 court, and which names the proper respondent and states all claims and requests for relief, within 22 30 days of the date of this order; and 23 5. Petitioner’s motion for appointment of counsel (Doc. 5) is denied without 24 prejudice to renewal, at the earliest, after a response to the petition has been filed; and 25 /// 26 /// 2 1 2 6. The Clerk of the Court is directed to send petitioner the court’s form habeas corpus application. 3 4 5 6 DATED: May 24, 2017 ______________________________________ CRAIG M. KELLISON UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 3

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