Vega v. Knipp

Filing 6

ORDER by Judge Yvonne Gonzalez Rogers granting 2 Motion for Leave to Proceed in forma pauperis; Directing Respondent to Show Cause Why the Petition should not be Granted; denying 3 Motion to Appoint Counsel (Attachments: # 1 Certificate/Proof of Service) (fs, COURT STAFF) (Filed on 2/12/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

United States District Court
For the Northern District of California

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No. C 12-05619 YGR (PR)

ERNEST VEGA,

ORDER GRANTING IN FORMA
PAUPERIS STATUS; DIRECTING
RESPONDENT TO SHOW CAUSE WHY
THE PETITION SHOULD NOT BE
GRANTED; AND DENYING MOTION
FOR APPOINTMENT OF COUNSEL

Petitioner,
vs.
WILLIAM KNIPP, Warden,

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Respondent.

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Petitioner, a state prisoner, has filed this petition for a writ of habeas corpus pursuant to 28

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U.S.C. § 2254. He seeks leave to proceed in forma pauperis. He has also filed a motion for

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appointment of counsel.

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It does not appear from the face of the petition that it is without merit. Good cause
appearing, the Court hereby issues the following orders:

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1.

Petitioner's application to proceed in forma pauperis is GRANTED.

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2.

The Clerk of the Court shall serve a copy of this Order and the petition and all

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attachments thereto upon Respondent and Respondent's attorney, the Attorney General of the State

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of California. The Clerk shall also serve a copy of this Order on Petitioner at his current address.

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3.

Respondent shall file with this Court and serve upon Petitioner, within sixty-three

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(63) days of the issuance of this Order, an Answer conforming in all respects to Rule 5 of the Rules

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Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not be issued.
Respondent shall file with the Answer a copy of all portions of the relevant state records that have

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been transcribed previously and that are relevant to a determination of the issues presented by the

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petition.

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4.

If Petitioner wishes to respond to the Answer, he shall do so by filing a Traverse with

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the Court and serving it on Respondent within sixty-three (63) days of his receipt of the Answer.

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Should Petitioner fail to do so, the petition will be deemed submitted and ready for decision sixty-

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three (63) days after the date Petitioner is served with Respondent's Answer.

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5.

Respondent may file with this Court and serve upon Petitioner, within sixty-three

(63) days of the issuance of this Order, a motion to dismiss on procedural grounds in lieu of an

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Answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules Governing Section

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United States District Court
For the Northern District of California

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2254 Cases. If Respondent files such a motion, Petitioner shall file with the Court and serve on

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Respondent an opposition or statement of non-opposition to the motion within sixty-three (63) days

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of receipt of the motion, and Respondent shall file with the Court and serve on Petitioner a reply

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within fourteen (14) days of receipt of any opposition.

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6.

It is Petitioner's responsibility to prosecute this case. Petitioner must keep the Court

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and Respondent informed of any change of address and must comply with the Court's orders in a

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timely fashion. Pursuant to Northern District Local Rule 3-11 a party proceeding pro se whose

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address changes while an action is pending must promptly file a notice of change of address

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specifying the new address. See L.R. 3-11(a). The Court may dismiss without prejudice a complaint

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when: (1) mail directed to the pro se party by the Court has been returned to the Court as not

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deliverable, and (2) the Court fails to receive within sixty days of this return a written

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communication from the pro se party indicating a current address. See L.R. 3-11(b); see also

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Martinez v. Johnson, 104 F.3d 769, 772 (5th Cir. 1997) (Rule 41(b) applicable in habeas cases).

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Petitioner must also serve on Respondent's counsel all communications with the Court by
mailing a true copy of the document to Respondent's counsel.
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Extensions of time are not favored, though reasonable extensions will be granted.

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Any motion for an extension of time must be filed no later than fourteen (14) days prior to the

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deadline sought to be extended.

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Petitioner's motion for appointment of counsel (docket no. 3) is DENIED without

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prejudice. See Knaubert v. Goldsmith, 791 F.2d 722, 728 (9th Cir. 1986) (unless an evidentiary

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hearing is required, the decision to appoint counsel in habeas corpus proceedings is within the

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discretion of the district court). Petitioner clearly presented his claims for relief in the petition and

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an order to show cause is issuing. Accord Bashor v. Risley, 730 F.2d 1228, 1234 (9th Cir. 1984)

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(although petitioner had no background in law, denial of appointment of counsel within discretion of

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district court where petitioner clearly presented issues in petition and accompanying memorandum).

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The Court will appoint counsel on its own motion if a evidentiary hearing is later required. See

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Knaubert, 791 F.2d at 728 (appointment of counsel mandatory if evidentiary hearing is required).

United States District Court
For the Northern District of California

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9.

This Order terminates Docket nos. 2 and 3.

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IT IS SO ORDERED.

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DATED: February 12, 2013
YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE

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