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Vicario v. Unknown

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


August 26, 2010

ALFRED VICARIO, PETITIONER,
v.
UNKNOWN, RESPONDENT.

The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court

ORDER: (1) DENYING MOTION FOR APPOINTMENT OF COUNSEL; AND (2) DISMISSING CASE WITHOUT PREJUDICE

Petitioner, a state prisoner proceeding pro se, has submitted a document titled "Motion for Appointment of Counsel for State Habeas Proceedings," which has been docketed as a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254.

Petitioner has not filed a Petition for a writ of habeas corpus in this action. Therefore, unless Petitioner is a capital prisoner, he has not initiated habeas proceedings in this Court. Calderon (Nicolaus) v. United States District Court, 98 F.3d 1102, 1107 n. 3 (9th Cir. 1996) ("Unlike non-capital prisoner who initiate habeas proceedings by filing a petition for a writ of habeas corpus, capital prisoners commence federal habeas proceedings by filing a request for appointment of counsel."); McFarland v. Scott, 512 U.S. 849 (1994).

Petitioner does not contend that he is a capital prisoner, that is, a prisoner under sentence of death, and there is nothing in the documents he has submitted which indicates that he is a capital prisoner. If Petitioner wishes to proceed with a habeas action in this Court he must (as is the case with all non-capital prisoners) file a petition for a writ of habeas corpus, which will be given a separate civil case number. However, if Petitioner is in fact a capital prisoner, he may request the Court to re-open this action in order to permit him to file a Petition under the civil case number assigned to this action.

Petitioner's Motion for Appointment of Counsel is DENIED without prejudice to Petitioner to renew his motion if he initiates habeas proceedings in this Court.

CONCLUSION AND ORDER

This action is DISMISSED without prejudice because Petitioner has not filed a Petition and has therefore failed to initiate federal habeas proceedings in this action. The Motion for Appointment of Counsel is DENIED without prejudice. If Petitioner is a capital prisoner he may request to have this case reopened. The Clerk of Court shall send Petitioner a blank Southern District of California habeas petition form along with a copy of this Order.

IT IS SO ORDERED.

20100826

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