The opinion of the court was delivered by: Lawrence J. O'Neill United States District Judge
DEATH PENALTY CASE DENYING
ORDER GRANTING APPLICATION FOR APPOINTMENT OF COUNSEL; WITHOUT PREJUDICE REQUEST FOR STAY OF EXECUTION AND APPLICATION TO PROCEED WITHOUT PREPAYMENT OFFEES; AND DEFERRING REQUEST FOR STATUS CONFERENCE
On February 9, 2011, Petitioner Joseph Martin Danks ("Danks"), a state prisoner facing capital punishment, commenced this action pursuant to 28 U.S.C. § 2254 by filing an application for appointment of counsel, request for a stay of execution, and request for a status conference. Appended with this filing is an application to proceed without prepayment of fees pursuant to 28 U.S.C. § 1915. The applications and requests are supported by the declaration of Habeas Corpus Resource Center ("HCRC") attorney Gary D. Sowards, appearing specially for Danks, and an Inmate Statement Report through December 24, 2010 from San Quentin State Prison.
I. Request for Appointment of Counsel
Section 3599(a)(2) of Title 18 of the United States Code provides for the appointment of one of more attorneys to represent an indigent person proceeding under 28 U.S.C. § 2254 to vacate a death sentence. Rule 191(c) of the Local Rules of the United States District Court for the Eastern District of California also provides for the appointment of counsel for indigent capital habeas petitioners. Under this rule, selection of counsel is made from a panel of attorneys qualified for appointment in death penalty cases and certified by a selection board appointed by the Chief Judge. Danks requests that the HCRC, which represented him before the California Supreme Court on state habeas, be appointed to represent him in these federal proceedings. Danks is entitled to appointment of counsel under 18 U.S.C. § 3599(a)(2).
II. Request for Stay of Execution
Local Rule 191(g)(1) provides that when an indigent, condemned habeas petitioner submits an application for appointment of counsel and a temporary stay of execution, the Court may issue a temporary stay of execution for a period of 90 days, while counsel is located. Danks has presented no facts or circumstances that would warrant the exercise of discretion to issue a temporary stay of execution in this case.
III. Request for a Status Conference
Danks requests a status conference to establish a due date for the filing of his petition, the answer of Respondent Vince Cullen, As Warden of San Quentin State Prison (the "Warden"), and his traverse.
Once counsel is appointed, the Court will set a case management conference for Phase I of the litigation at which both Danks and the Warden will appear to discuss filing deadlines, lodging of the record, and review of the record. Prior to that conference, the Court will request counsel for both parties to complete case evaluation forms and for Danks' attorneys to submit a case management plan and budget. Until then, both Danks and the Warden are encouraged to review the Fresno Attorney Guide to Case Management and Budgeting in Capital Habeas Cases in four phases. This document is available on the Court's webpage under Attorney Info, Forms, CJA. The parties also are encouraged to review amended Local Rule 191, effective February 8, 2011.
IV. Application for Leave to Proceed in Forma Pauperis
Rule 3(a) of the Rules Governing § 2254 Cases in the United States District Courts provides that a petitioner seeking in forma pauperis status shall file an affidavit of assets as required by 28 U.S.C. § 1915. Rule 3(a) also requires a certificate from the prison stating the amount on deposit in the petitioner's accounts. While Danks' Application to Proceed without Prepayment of Fees asserts his indigence, under penalty of perjury, and he includes an Inmate Statement Report with his submission, he has not provided the Court with a certificate from the prison stating the amount on deposit in his inmate account. The Inmate Statement Report is not certified by a prison official. Although Local Rule 191(e) does not require a filing fee for death penalty cases filed pursuant to 28 U.S.C. § 2254, the application for in forma pauperis should be presented properly before the Court confers that status on Danks.
Good cause appearing therefor, 1. Danks' application for appointment of counsel is granted. The matter is referred to the Selection Board for the Eastern District of California to certify an attorney or attorneys ...