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West v. Dickinson

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


August 12, 2010

MACK A. WEST, JR. PETITIONER,
v.
KATHLEEN DICKINSON, WARDEN, RESPONDENT.

ORDER

Petitioner, a state prisoner proceeding pro se, is seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court is petitioner's motion for (1) an order to show cause; (2) an order initiating discovery; (3) an evidentiary hearing; and (4) the appointment of counsel.

PETITIONER'S REQUESTS

I. Order to Show Cause

First, petitioner requests that the court issue an order directing respondent to file an answer to his second amended habeas petition. The court has already issued such an order. On July 16, 2010, the court directed respondent to file a response to petitioner's habeas application. (Doc. No. 26.) Accordingly, the court will deny petitioner's request for an order to show cause as moot.

II. Discovery

Second, petitioner requests the court to initiate discovery. Respondent, however, has yet to file a response to petitioner's second amended habeas application. Accordingly, the court will deny petitioner's request for discovery as premature.*fn1

III. Evidentiary Hearing

Third, petitioner requests an evidentiary hearing. Under Rule 8(a), the court must determine whether an evidentiary hearing is warranted after respondent has filed an answer. See Rule 8(a), Fed. R. Governing § 2254 Cases. Here, as noted above, this case has yet to reach that juncture. Accordingly, petitioner's request for an evidentiary hearing will also be denied as premature.*fn2

IV. Appointment of Counsel

Fourth, petitioner requests 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." 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 this time. Accordingly, the court will deny petitioner's request for the appointment of counsel without prejudice to a renewal of such a request at a later stage of the proceedings.

CONCLUSION

In accordance with the above, IT IS HEREBY ORDERED that petitioner's July 29, 2010 motion (Doc. No. 29) is denied as follows:

1. Petitioner's request for an order to show cause is denied as moot;

2. Petitioner's request for an order initiating discovery is denied as premature;

3. Petitioner's request for an evidentiary hearing is denied as premature; and

4. Petitioner's request for the appointment of counsel is denied without prejudice to a renewal of such a request at a later stage of the proceedings.


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