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Houk v. Walker

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


February 12, 2009

LARRY N. HOUK, PETITIONER,
v.
JIMMY WALKER, WARDEN, RESPONDENT.

ORDER

On September 4, 2008, the court granted petitioner's motion for a stay and abeyance. The court stayed this action and instructed petitioner to file a motion to lift the stay, along with a proposed second amended petition containing only exhausted claims, within thirty days after petitioner was served with the California Supreme Court's order disposing of his state exhaustion petition.

Petitioner has informed the court that the California Supreme Court denied his state habeas petition on January 28, 2009. Although petitioner has filed a request to lift the stay in this action, he has not filed a proposed second amended petition. Good cause appearing, the court will grant petitioner thirty days to file a proposed second amended petition containing only exhausted claims.

Petitioner has also filed a motion for 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.

Accordingly, IT IS HEREBY ORDERED that:

1. Petitioner shall file a proposed second amended petition containing only exhausted claims within thirty days of the date of this order;

2. Petitioner's February 5, 2009 motion for appointment of counsel is denied; and

3. The Clerk of the Court is directed to send petitioner the court's form for filing a petition for writ of habeas corpus.

20090212

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