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HENSEL v. ADAMS

United States District Court, N.D. California


October 14, 2005.

CLARENCE HENSEL, Peititoner,
v.
DERRAL ADAMS, Respondent.

The opinion of the court was delivered by: MAXINE CHESNEY, District Judge

ORDER OF DISMISSAL WITH LEAVE TO AMEND; DENYING APPOINTMENT OF COUNSEL
Petitioner, a California state prisoner proceeding pro se, filed the above-titled petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He has paid the filing fee.

Pursuant to Rule 11, every pleading, written motion, or other paper filed in an action shall be signed by the party's attorney or, "if the party is not represented by an attorney, shall be signed by the party." Fed.R.Civ.P. 11(a). An unsigned paper shall be stricken unless omission of the signature is corrected promptly after being called to the attention of the party. Id. In the instant action, petitioner did not sign the petition himself; rather, his name was signed by an attorney, Marylou Hillberg. The caption of the petition indicates that Ms. Hillberg is not representing petitioner in this case. Indeed, petitioner has requested that the court appoint counsel for him. Consequently, pursuant to Rule 11(a), petitioner must sign the petition himself. Accordingly, the action is hereby DISMISSED, with leave to file within thirty (30) days of the date this order is filed, a properly-signed petition. If petitioner wishes to continue to proceed pro se, he must sign such petition himself. The petition may be signed by counsel only if counsel appears on his behalf as counsel of record. The petition must include the caption and civil case number used in this order (No. C 05-2411 MMC (PR)) and the words AMENDED PETITION on the first page.

  Petitioner is further advised that he must include in the amended petition all the claims he wishes to present, and he may not include any unexhausted claims or incorporate material from prior petitions by reference.

  Failure to file an amended petition in conformity with this order shall result in the dismissal of this action without prejudice.

  The interests of justice do not warrant appointment of counsel in this case. See 18 U.S.C. § 3006A(a)(2)(B). Accordingly, petitioner's request for such appointment is DENIED.

  Petitioner's motion for leave to proceed in forma pauperis is DENIED as moot in light of petitioner's payment of the filing fee.

  This order terminates Docket Nos. 2 and 3.

  IT IS SO ORDERED.

20051014

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