Johnson v. Kernan et al

Filing 27

ORDER signed by Magistrate Judge Allison Claire on 7/9/2018 ORDERING Respondent to file an opposition or notice of non-opposition to 23 Motion for Stay and Abeyance within 30 days from the date of this order; DENYING without prejudice 24 Request for Appointment of Counsel; ORDERING Petitioner to file an opposition or notice of non-opposition to 22 Motion to Dismiss within 30 days of service of this order. If petitioner exhausts any claims in the California Supreme Court prior to this courts resolution of the pending motion, petitioner shall file a notice of exhaustion in this court. (Henshaw, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JERRY C. JOHNSON,

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No. 2:17-cv-2525 JAM AC P

Petitioner,
v.

ORDER

SCOTT KERNAN et al.,
Respondents.

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Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus

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pursuant to 28 U.S.C. § 2254. On June 22, 2018, the court docketed petitioner’s motion to stay

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and abey his federal habeas petition pursuant to Rhines v. Weber, 544 U.S. 269 (2005). ECF No.

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23. Petitioner has also filed a copy of a habeas petition captioned for the California Supreme

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Court and accompanied by a note stating that it is “for Exhaust Only in the event this court does

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not agree petitioner had previously Exhausted all his claims.” ECF No. 25. Due to the

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overwhelming demands on the court’s docket, the motion for stay cannot be adjudicated

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immediately. However, petitioner is not required to await resolution of the pending motion

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before returning to state court to properly exhaust his state court remedies. Petitioner is advised

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that filing his exhaustion petition with this court will not exhaust his state court remedies; he must

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file the petition in the appropriate state court. In the event that petitioner exhausts any claims in

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the California Supreme Court prior to this court’s resolution of the pending motion, petitioner is
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advised to file a notice of exhaustion in this court.

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Petitioner has also filed a motion for reconsideration for appointment of counsel (ECF No.

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24), which the court will construe as a renewed motion for counsel. There currently exists no

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

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460 (9th Cir. 1996). However, 18 U.S.C. § 3006A(a)(2) authorizes the appointment of counsel at

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any stage of the case “if the interests of justice so require.” Petitioner requests counsel based on

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the fact that respondent has filed a motion to dismiss and he has mobility limitations and limited

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access to the prison law library. ECF No. 24. In the present case, the court does not find that the

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interests of justice would be served by the appointment of counsel at this time. Delays in

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petitioner’s ability to respond to the motion to dismiss can be addressed by extending his time for

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filing a response.1

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Accordingly, IT IS HEREBY ORDERED that:

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1. Respondent is hereby directed to file an opposition or a notice of non-opposition to

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petitioner’s stay and abeyance motion within thirty days from the date of this order. Petitioner’s

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reply, if any, is due fourteen days thereafter.

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2. If petitioner exhausts any claims in the California Supreme Court prior to this court’s
resolution of the pending motion, petitioner shall file a notice of exhaustion in this court.

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3. Petitioner’s request for appointment of counsel (ECF No. 24) is denied without
prejudice to a renewal of the motion at a later stage of the proceedings.

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4. Within thirty days of service of this order, petitioner shall file an opposition or a notice

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of non-opposition to respondent’s motion to dismiss.

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DATED: July 9, 2018

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Although petitioner has filed a motion for stay (ECF No. 23), it is not clear whether the motion
was also intended as his response to the motion to dismiss.
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