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Claiborne v. Sisto

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


January 5, 2009

KEVIN CLAIBORNE, PETITIONER,
v.
D. K. SISTO, ET AL., RESPONDENTS.

ORDER

Petitioner is a state prisoner without counsel seeking a writ of habeas corpus. See 28 U.S.C. § 2254. He seeks leave to proceed in forma pauperis. See 28 U.S.C. § 1915(a). Petitioner also requests the appointment of counsel. For the reasons explained, the court grants the application for leave to proceed in forma pauperis and directs that the petition be served, but denies the request for counsel.

Examination of the in forma pauperis affidavit reveals that petitioner is unable to afford the costs of suit.

A judge "entertaining an application for a writ of habeas corpus shall forthwith award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person detained is not entitled thereto." 28 U.S.C. § 2243. It is not apparent from the face of the application that the petitioner is not entitled to relief.

Petitioner has also requested the appointment of counsel. Petitioner's request for counsel must be denied. 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). The court may appointment counsel at any stage of the proceedings "if the interests of justice so require." See 18 U.S.C. § 3006A; see also, Rule 8(c), Rules Governing Section 2254 Cases. The court does not find that the interests of justice would be served by the appointment of counsel at this stage of the proceedings.

Accordingly, it is hereby ordered that:

1. Petitioner's request for leave to proceed in forma pauperis is granted.

2. Petitioner's July 15, 2008, request for appointment of counsel is denied without prejudice.

3. Respondent shall file and serve either an answer or a motion in response to petitioner's application within 60 days from the date of this order. See Rule 4, Fed. R. Governing § 2254 Cases. Any response shall be accompanied by any and all transcripts or other documents relevant to the determination of the issues presented in the application. See Rules 4, 5, Fed. R. Governing § 2254 Cases.

4. Petitioner's reply, if any, shall be filed and served within 30 days of service of an answer.

5. If the response to petitioner's application is a motion, petitioner's opposition or statement of non-opposition shall be filed and served within 30 days of service of the motion, and respondents' reply, if any, shall be filed within 15 days thereafter.

6. The Clerk of the Court shall serve a copy of this order together with a copy of petitioner's July 15, 2008, petition for a writ of habeas corpus with any and all attachments on Michael Patrick Farrell, Senior Assistant Attorney General for the State of California. The Clerk of the Court also shall serve on the Senior Assistant Attorney General the consent form used in this court.

20090105

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