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McNeely v. McGinness

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


September 21, 2009

DOCK MCNEELY, PETITIONER,
v.
JOHN MCGINNESS, RESPONDENT.

ORDER

Petitioner is a county jail inmate proceeding pro se with a petition for a writ of habeas corpus challenging a pending prosecution against him. Petitioner has consented to magistrate judge jurisdiction. He has submitted a request to proceed in forma pauperis pursuant to 28 U.S.C. § 1915; examination of the in forma pauperis affidavit reveals that petitioner is unable to afford the costs of suit. Accordingly, the request for leave to proceed in forma pauperis is granted. See 28 U.S.C. § 1915(a).

Petitioner has filed a motion 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.

Examination of this court's records shows that petitioner has litigated two other actions in this court challenging the same pending prosecution against him: McNeely v. McGinness, Civ. No. 09-2375 DAD P and McNeely v. McGinness, Civ. No. 08-175 LEW JFM P. The latter is closed; in the former, a recommendation that the case be dismissed as without factual basis has been filed. The instant case is thus duplicative and should be dismissed as frivolous.

Good cause appearing, IT IS HEREBY ORDERED that:

1. Petitioner's motion for leave to proceed in forma pauperis (docket no. 2) is granted;

2. Petitioner's motion for the appointment of counsel (docket no. 3) is denied; and

3. Petitioner's application for a writ of habeas corpus is dismissed as duplicative.

20090921

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