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Norwood v. Clark

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


July 29, 2009

DONALD NORWOOD, PETITIONER,
v.
KEN CLARK, RESPONDENT.

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 has not, however, filed an in forma pauperis affidavit or paid the required filing fee ($5.00). See 28 U.S.C. §§ 1914(a); 1915(a). Petitioner will be provided the opportunity to either submit the appropriate affidavit in support of a request to proceed in forma pauperis or submit the appropriate filing fee.

With his application, petitioner has 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, petitioner's motion for appointment of counsel will be denied without prejudice.

Petitioner has also filed a document styled "motion for equitable tolling." By this motion, petitioner seeks equitable tolling of the federal statute of limitations. The question of whether petitioner needs or is entitled to equitable tolling of the limitation period will not arise unless respondent raises the a statute of limitations defense in response to the petition. Petitioner's motion will be denied without prejudice to petitioner's right to raise the arguments raised therein, as appropriate, should respondent move to dismiss this action as barred by the statute of limitations.

Finally, petitioner has filed a motion to hold this action in abeyance due to the pendency of a petition for writ of habeas corpus in the California Supreme Court. The court will, as appropriate, by subsequent order direct respondent to respond to petitioner's motion.

In accordance with the above, IT IS HEREBY ORDERED that:

1. Petitioner shall submit, within thirty days from the date of this order, an affidavit in support of his request to proceed in forma pauperis or the appropriate filing fee; petitioner's failure to comply with this order will result in the dismissal of this action;

2. The Clerk of the Court is directed to send petitioner a copy of the in forma pauperis form used by this district;

3. Petitioner's July 10, 2009 motion for appointment of counsel is denied; and

4. Petitioner's July 10, 2009 motion for equitable tolling is denied without prejudice.

20090729

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