Petitioner, a state prisoner proceeding without counsel, seeks a writ of habeas corpus. See 28 U.S.C. § 2254. On July 15, 2010, respondent filed a motion to dismiss the petition as barred by the statute of limitations. Dckt. No. 13. Petitioner opposed the motion, arguing that the statute of limitations should be equitably tolled. Dckt. No. 16. After two extensions of time to file a reply, respondent has instead requested that the motion to dismiss be withdrawn and that the court set a briefing schedule setting respondent's merits response to be due 60 days from the date of the court's ruling. The court grants respondent's request.
Additionally, 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). The court may appointment counsel at any stage of the proceedings "if the interests of justice so require." See 18 U.S.C. § 3006A; see also, Rule 8(c), Rules Governing Section 2254 Cases. Notwithstanding petitioner's medical conditions, the court does not find that the interests of justice would be served by the appointment of counsel at this stage of the proceedings.
Accordingly, it is hereby ordered that:
1. Respondent's September 30, 2010 request is granted and the July 15, 2010 motion to dismiss is deemed withdrawn.
2. Respondent shall file and serve an answer, and not a motion, in response to petitioner's application within 60 days from the date of this order. See Rule 4, Fed. R. Governing § 2254 Cases. Any response shall be accompanied by any and all transcripts or other documents relevant to the determination of the issues presented in the application. See Rules 4, 5, Fed. R. Governing § 2254 Cases.
3. Petitioner's reply, if any, shall be filed and served within 30 days of service of an answer.
4. Petitioner's September 28, 2010 request for appointment of counsel is denied without prejudice.
© 1992-2010 VersusLaw ...