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Lucas v. Moore

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


September 5, 2008

DANIEL LUCAS, PETITIONER,
v.
STEVE MOORE, ET AL., RESPONDENTS.

ORDER

Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges the denial of parole on May 16, 2007. Petitioner has requested leave to proceed in forma pauperis; however, petitioner has paid the filing fee. Therefore, the in forma pauperis application will be denied without prejudice.

Petitioner has also requested the appointment of counsel. There currently exists no absolute right to appointment of counsel in habeas proceedings. See Nevius v. Sumner, 105 F.3d 453, 460 (9th Cir. 1996). However, 18 U.S.C. § 3006A authorizes the appointment of counsel at any stage of the case "if the interests of justice so require." See Rule 8(c), Fed. R. Governing § 2254 Cases. In the present case, the court does not find that the interests of justice would be served by the appointment of counsel at the present time.

Since petitioner may be entitled to the requested relief if the claimed violation of constitutional rights is proved, respondents will be directed to file a response to petitioner's application.

In accordance with the above, IT IS HEREBY ORDERED that: 1. Respondents are directed to file a response to petitioner's application within sixty days from the date of this order. See Rule 4, Fed. R. Governing § 2254 Cases. An answer shall be accompanied by any and all transcripts or other documents relevant to the determination of the issues presented in the application. See Rule 5, Fed. R. Governing § 2254 Cases;

2. Petitioner's reply, if any, shall be filed and served within thirty days of service of an answer;

3. If the response to petitioner's application is a motion, petitioner's opposition or statement of non-opposition shall be filed and served within thirty days of service of the motion, and respondents' reply, if any, shall be filed within fifteen days thereafter;

4. Petitioner's application requesting leave to proceed in forma pauperis (Doc. No. 2), is denied without prejudice;

5. Petitioner's June 2, 2008 motion for the appointment of counsel (Doc. No. 3) is denied without prejudice; and

6. The Clerk of the Court shall serve a copy of this order together with a copy of petitioner's application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on Jennifer A. Neill, Supervising Deputy Attorney General.

20080905

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