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Garcia v. Clark

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


July 29, 2010

MARIO FLAVIO GARCIA, PETITIONER,
v.
KEN CLARK, WARDEN, RESPONDENT.

ORDER

Petitioner is a state prisoner proceeding pro se and in forma pauperis seeking relief pursuant to 28 § U.S.C. 2254. Petitioner has two motions pending before the court.

MOTION FOR A STAY AND ABEYANCE

On April 21, 2010, petitioner filed a motion for a stay and abeyance. Therein, petitioner explains that his state habeas petition, raising the same claims as those presented in his pending federal habeas petition, is currently under review by the California Supreme Court.

According to the California Supreme Court's website, on July 21, 2010 that court denied petitioner's state habeas petition (Case No. S179195). Accordingly, because petitioner has now fully exhausted his state judicial remedies, the court will deny petitioner's motion for a stay and abeyance as having been rendered moot.

MOTION FOR THE APPOINTMENT OF COUNSEL

On July 23, 2010, petitioner filed a motion requesting 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.

CONCLUSION

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

1. Petitioner's April 21, 2010 motion for a stay and abeyance (Doc. No. 3) is denied as moot; and

2. Petitioner's July 23, 2010 motion for the appointment of counsel (Doc. No. 18) is denied without prejudice to a renewal of the motion at a later stage of the proceedings.

20100729

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