IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
September 29, 2010
UNITED STATES OF AMERICA, RESPONDENT,
CALS IFENATUORA, MOVANT.
Movant, a federal prisoner proceeding pro se, has filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255.*fn1 Since movant may be entitled to the requested relief if he can establish a violation of his constitutional rights, respondent will be directed to file an answer within thirty days of the effective date of this order. See Rule 4, Rules Governing Section 2255 Proceedings.
Respondent shall include with the answer any and all transcripts or other documents relevant to the determination of the issues presented in the motion. Rule 5, Rules Governing Section 2255 Proceedings. Movant's reply, if any, will be due on or before thirty days from the date respondent's answer is filed.
Movant has requested the appointment of counsel. There currently exists no absolute right to appointment of counsel in § 2255 proceedings. See, e.g., Irwin v. United States, 414 F.2d 606 (9th Cir. 1969). 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), Rules Governing Section 2255 Proceedings. 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, movant's motion for appointment of counsel will be denied without prejudice to its renewal at a later stage of these proceedings.
Finally, movant has filed a motion for production of transcripts at government expense. By this order, respondent is directed to include with their answer all transcripts relevant to determination of the issues presented in the motion. Respondent is required to serve a copy of the answer and all accompanying documents on movant. Movant's motion will therefore be denied without prejudice to its renewal, if necessary, following the filing and service of respondent's answer.
In accordance with the above, IT IS HEREBY ORDERED that:
1. Respondent is directed to file a response to movant's amended § 2255 motion within thirty days from the date of this order. See Rule 4, Rules Governing Section 2255 Proceedings. 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 Section 2255 Cases;
3. If the response to the habeas petition is an answer, movant's reply, if any, shall be filed and served within thirty days after service of the answer;
4. If the response to the amended § 2255 motion is a motion, petitioner's opposition or statement of non-opposition to the motion shall be filed and served within thirty days after service of the motion, and respondent's reply, if any, shall be filed and served within fourteen days thereafter;
5. The Clerk of the Court shall serve a copy of this order, together with a copy of movant's amended § 2255 motion, filed May 20, 2010, on the United States Attorney or his authorized representative.
6. Movant's May 20, 2010 motion for appointment of counsel is denied without prejudice.
7. Movant's May 20, 2010 motion for production of transcripts at government expense is denied without prejudice.