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Orozco v. Felker

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


August 4, 2009

PEDRO FERNANDEZ OROZCO, PETITIONER,
v.
T. FELKER, WARDEN, RESPONDENT.

The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge

ORDER

On September 29, 2008, petitioner filed a request for reconsideration of the magistrate judge's order filed September 12, 2008, denying, without prejudice, petitioner's motion to hold the habeas petition in abeyance. Pursuant to E.D. Local Rule 72-303(f), a magistrate judge's orders shall be upheld unless "clearly erroneous or contrary to law." Upon review of the entire file, the court finds that it does not appear that the magistrate judge's ruling was clearly erroneous or contrary to law.

Petitioner expressed concern that the magistrate judge did not advise petitioner that he could proceed on his one exhausted claim. However, because the instant petition raises only one claim which petitioner has exhausted, petitioner's case is proceeding in this court as to that one claim. Petitioner's case is now submitted to the court for decision. As long as petitioner keeps the court apprised of his current address, petitioner will receive all court decisions which are issued.

Petitioner also renewed his request for 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.

Therefore, IT IS HEREBY ORDERED that, upon reconsideration, the order of the magistrate judge filed September 12, 008, is affirmed. Petitioner's renewed motion for appointment of counsel is denied.

20090804

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