UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
January 5, 2011
DERRYL TYRONE FOSTER, PETITIONER,
PEOPLE OF THE STATE OF CALIFORNIA RESPONDENT.
The opinion of the court was delivered by: Honorable Barry Ted Moskowitz United States District Judge
DISMISSING CASE WITHOUT PREJUDICE MOTION FOR,APPOINTMENT OF COUNSEL AND ORDER DENYING WITHOUT PREJUDICE
On September 15, 2010, Petitioner, a state prisoner proceeding pro se, filed a motion asking the Court to grant a stay and abeyance pursuant to Rhines v. Webber, 54 U.S. 269 (2005). By Order dated October 1, 2010, the Court denied Petitioner's request for stay and abeyance without prejudice. (See Order dated October 1, 2010 [doc. no. 2].) Petitioner was advised that the Court could not grant the request because he had not yet filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, and unless Petitioner is a capital prisoner, he had not initiated habeas proceedings in this Court. Calderon (Nicolaus) v. United States District Court, 98 F.3d 1102, 1107 n. 3 (9th Cir. 1996) (stating that "[u]nlike non-capital prisoners 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).
On November 8, 2010, Petitioner filed a Motion to Appoint Counsel. [Doc. No. 4.] Petitioner has not filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in this Court and has not alleged that he is a capital prisoner, therefore this Court lacks jurisdiction and DENIES Petitioner's Motion for Appointment of Counsel as moot.
For the foregoing reasons, Petitioner's request for appointment of counsel is DENIED as moot and the case is DISMISSED without prejudice and without leave to amend for the reasons set forth in the Court's Order of October 1, 2010. If Petitioner's chooses to file a subsequent petition for writ habeas corpus pursuant to 28 U.S.C. § 2254, it will be filed as a new case and given a new case number.
IT IS SO ORDERED.
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