IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
March 10, 2010
RONALD SMITH, PETITIONER,
PEOPLE OF THE STATE OF CALIFORNIA, RESPONDENT.
ORDER AND FINDINGS AND RECOMMENDATIONS
Petitioner is a Washington state prisoner without counsel seeking a writ of mandamus directed to the Yolo County Superior Court.
He seeks leave to proceed in forma pauperis. See 28 U.S.C. § 1915. Examination of the in forma pauperis affidavit reveals that petitioner is unable to afford the costs of suit.
Petitioner contends he suffered a criminal conviction in the Yolo County Superior Court and was denied effective assistance of counsel. He asks this court to order the state superior court to decide the issues raised by petitioner in the instant petition for writ of mandamus.
Federal courts lack jurisdiction to issue a writ of mandamus to a state court. See Demos v. United States Dist. Court for the E. Dist. of Wash., 925 F.2d 1160, 1161 (9th Cir. 1991). The proper remedy for a state prisoner challenging any aspect of his state custody is to file a federal habeas petition pursuant to 28 U.S.C. § 2254. White v. Lambert, 370 F.3d 1002, 1009-10 (9th Cir. 2004).
Petitioner has requested that the court appoint counsel. In habeas proceedings, there is no absolute right to appointment of counsel. See Nevius v. Sumner, 105 F.3d 453, 460 (9th Cir. 1996). The court may appointment counsel at any stage of the proceedings "if the interests of justice so require." See 18 U.S.C. § 3006A; see also, Rule 8(c), Rules Governing Section 2254 Cases. The court does not find that the interests of justice would be served by the appointment of counsel.
Accordingly, it is ORDERED that:
1. Petitioner's request for leave to proceed in forma pauperis is granted.
2. Petitioner's April 24, 2009 motion for appointment of counsel is denied.
Further, it is hereby RECOMMENDED that the March 9, 2009 petition for a writ of mandamus be dismissed for lack of jurisdiction, without prejudice to filing a petition for writ of habeas corpus in a new action.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Failure to file objections within the specified time may waive the right to appeal the District Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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