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Conner v. Barnes

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


March 30, 2010

CEDRIC W. CONNER, PETITIONER,
v.
R. BARNES, WARDEN, RESPONDENT.

The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

Petitioner is a state prisoner proceeding without counsel and in forma pauperis in this habeas corpus action filed pursuant to 28 U.S.C. § 2254. This case, filed July 20, 2009, was reassigned to the undersigned on February 9, 2010.*fn1

Examination of the in forma pauperis application (Dkt. No. 2) reveals that petitioner is unable to afford the costs of suit. Accordingly, the application to proceed in forma pauperis will be granted. See 28 U.S.C. § 1915(a).

Petitioner challenges his June 30, 2007 convictions for second degree burglary and petty theft, pursuant to claims, inter alia, that he was denied due process, equal protection, effective assistance of counsel, and the right to appeal. Dkt. No. 1, at 2 et seq. It appears that petitioner has exhausted his state court remedies. Because petitioner may be entitled to relief if the claimed violation of constitutional rights is proved, respondents will be directed to file a response to petitioner's habeas petition.

Petitioner also seeks appointment of counsel. Dkt. No. 3. There is no absolute right to appointed counsel in habeas proceedings. See Nevius v. Sumner, 105 F.3d 453, 460 (9th Cir. 1996). However, a district court may appoint counsel for a financially eligible person seeking relief pursuant to 28 U.S.C. § 2254 where "the interests of justice so require." 18 U.S.C. § 3006A(a)(2)(B).*fn2 "Indigent state prisoners applying for habeas corpus relief are not entitled to appointed counsel unless the circumstances of a particular case indicate that appointed counsel is necessary to prevent due process violations." Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986) (citations omitted).

Petitioner contends that he requires appointed counsel for essentially the same reasons he pursues the instant writ, viz., the alleged incompetence of his trial counsel, as well as multiple alleged errors by the trial court. Dkt. No. 3. The court finds, at the present time, that appointment of counsel is not warranted. The issues appear to have been adequately articulated in the briefing and decisions below. The court will, however, reconsider the matter upon subsequent motion after this case is fully briefed.

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

1. Petitioner's application to proceed in forma pauperis (Dkt. No. 2), is granted;

2. Petitioner's motion for appointment of counsel (Dkt. No. 3) is denied without prejudice;

3. Respondents are directed to file and serve a response to petitioner's habeas 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;

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

5. 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 twenty-eight days after service of the motion, and respondents' reply, if any, shall be filed and served within fourteen days thereafter;

6. The Clerk of the Court shall serve a copy of this order, the consent/ reassignment form contemplated by Appendix A(k) to the Local Rules of this court, and a copy of the petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on Michael Patrick Farrell, Senior Assistant Attorney General.


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