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Cox v. Small

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


February 9, 2010

LAWRENCE COX, PETITIONER,
v.
LARRY SMALL, WARDEN, RESPONDENT.

ORDER

Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.

On October 27, 2009, this action was stayed, and petitioner was directed to file a motion to lift the stay, together with a proposed amended petition containing only his exhausted claims within thirty days after completion of state habeas proceedings. On January 22, 2010, petitioner informed the court that the California Supreme Court denied his exhaustion petition on December 23, 2009. On the same day, he filed a motion to lift the stay of this action and two motions for an extension of time to file his proposed amended petition. Before the court had an opportunity to rule on his motions, petitioner filed his proposed amended petition. Good cause appearing, the court will grant petitioner's motions for an extension of time as well as his motion to lift the stay in this action. The court will also direct the Clerk of the Court to re-open this case.

Since petitioner may be entitled to habeas corpus relief if the claimed violations of constitutional rights are proved, respondent will be directed to file a response to petitioner's amended petition.

Also pending before the court is petitioner's 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's January 22, 2010 motions for an extension of time (Doc. Nos. 16 & 17) are granted;

2. Petitioner's January 22, 2010 motion to lift the stay in this action (Doc. No. 20) is granted;

3. The Clerk of the Court is directed to re-open this case;

4. Respondent is directed to file a response to petitioner's January 27, 2010 amended petition within sixty days from the date of this order. See Rule 4, Fed. R. Governing § 2254 Cases. An answer shall be accompanied by all transcripts and other documents relevant to the issues presented in the petition. See Rule 5, Fed. R. Governing § 2254 Cases;

5. If the response to the habeas petition is an answer, petitioner's reply, if any, shall be filed and served within thirty days after service of the answer;

6. If the response to the habeas petition is a motion, petitioner's opposition or statement of non-opposition to the motion shall be filed and served within thirty days after service of the motion, and respondent's reply, if any, shall be filed and served within fifteen days thereafter;

7. The Clerk of the Court shall serve a copy of this order, a copy of petitioner's January 27, 2010 amended petition, and a copy of the form regarding consent or request for reassignment on Michael Patrick Farrell, Senior Assistant Attorney General; and

8. Petitioner's January 22, 2009 motion for appointment of counsel (Doc. No. 19) is denied.

20100209

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