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Brian Sum v. Ken Clark

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


March 18, 2011

BRIAN SUM, PETITIONER,
v.
KEN CLARK, WARDEN RESPONDENT.

The opinion of the court was delivered by: Timothy J Bommerunited States Magistrate Judge

ORDER

Petitioner is proceeding with a federal habeas petition pursuant to 28 U.S.C. § 2254. On February 11, 2011, the Federal Defender was appointed to represent Petitioner and assist Petitioner in either filing a motion to stay and abey these federal habeas proceedings or inform this Court that Petitioner only wishes to move forward on his exhausted habeas claims.*fn1 In the February 11, 2011 order, Petitioner was also ordered to file an application to proceed in forma pauperis to show that he is in fact indigent so that the expenditure of public funds for counsel is warranted under 18 U.S.C. § 3006A(a)(2)(B) ("Whenever the United States magistrate judge or the court determines that the interests of justice so require, representation may be provided for any financially eligible person who is seeking relief under section 2241, 2254 or 2255 of title 28.").

Petitioner paid the requisite $5.00 filing fee in this case. On March 16, 2011, Petitioner filed a motion to proceed in forma pauperis. The application reveals that Petitioner has $257.96 in his prison trust account. Therefore, Petitioner's motion to proceed in forma pauperis will be denied. However, in light of the fact that Petitioner only has $257.96 in his prison trust account, it is determined that Petitioner is financially eligible for the appointment of counsel in this case. Therefore, the appointment of Petitioner's counsel remains in place as outlined in the February 11, 2011 order. See, e.g., Chen v. Napolitano, Civ. No. 09-563, 2009 WL 857628, at *1 (denying motion to proceed in forma pauperis because petitioner had $1,560.00 in his prison trust account and could pay the $5.00 filing fee but appointing counsel pursuant to 18 U.S.C. § 3006A(a)(2)(B)).

Accordingly, IT IS HEREBY ORDERED that:

1. Petitioner's motion to proceed in forma pauperis is DENIED; and

2. The Federal Defender's Office shall remain Petitioner's appointed counsel as outlined in the February 11, 2011 order.


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