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