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Vue v. Harrington

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


June 15, 2009

BEE VUE, PETITIONER,
v.
KELLY HARRINGTON, WARDEN, RESPONDENT.

ORDER

Petitioner is a state prisoner proceeding pro se with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In accordance with the court's May 20, 2009 order, petitioner has paid the filing fee.

Petitioner commenced this action on April 29, 2009, by filing an 81-page petition for writ of habeas corpus. For reasons unclear to the court, on May 20, 2009, petitioner filed an eight-page petition for writ of habeas corpus. In this most recently-filed petition, petitioner refers the court to an attachment, but he has failed to attach any documents to the petition. Good cause appearing, the court will grant petitioner thirty days to inform the court on how he wishes to proceed. If petitioner wishes to proceed with his original 81-page petition, he will be directed to file a declaration stating he wishes to do so. On the other hand, if petitioner wishes to amend his petition, he will be directed to file an amended petition that includes any necessary attachments.

Also pending before the court is petitioner's motion for appointment of counsel. Petitioner is advised that 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. Within thirty days of the date of service of this order petitioner shall either:

a. file a declaration stating he wishes to proceed with his original 81-page petition for writ of habeas corpus; or

b. file an amended petition, together with any necessary attachments. An amended petition must be filed on the form employed by this court, must name the proper respondent, and must state all claims and prayers for relief on the form. It must bear the case number assigned to this action and must bear the title "Amended Petition."

2. Petitioner's June 3, 2009 motion for appointment of counsel (Doc. No. 11) is denied; and

3. The Clerk of the Court is directed to send petitioner the form for habeas corpus application.

20090615

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